IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated : 03.12.2009 Coram THE HON’BLE MR. JUSTICE K.CHANDRU W.P.Nos.29946 to 29958, 30014 to 30018, 30281 and 30282 of 2007 & M.P.Nos.1 of 2007 G.Lakshmi ...Petitioner in W.P.No.29946 of 2007 S.Yogeshwari ...Petitioner in W.P.No.29947 of 2007 K.Srinivasan ...Petitioner in W.P.No.29948 of 2007 S.Kanniammal ...Petitioner in W.P.No.29949 of 2007 K.Mohana ...Petitioner in W.P.No.29950 of 2007 R.Durairaj ...Petitioner in W.P.No.29951 of 2007 D.Munian ...Petitioner in W.P.No.29952 of 2007 R.Kumari ...Petitioner in W.P.No.29953 of 2007 M.Elumalai ...Petitioner in W.P.No.29954 of 2007 S.Fathimuthu ...Petitioner in W.P.No.29955 of 2007 Joghanabee ...Petitioner in W.P.No.29956 of 2007 Nazeer ...Petitioner in W.P.No.29957 of 2007 Ibrahim ...Petitioner in W.P.No.29958 of 2007 Hyath Basha ...Petitioner in W.P.No.30014 of 2007 Mohammed Rabi ...Petitioner in W.P.No.30015 of 2007 Ameer Hamja ...Petitioner in W.P.No.30016 of 2007 Mumtaj Bee ...Petitioner in W.P.No.30017 of 2007 Nafeeza Bee ...Petitioner in W.P.No.30018 of 2007 P.Jothi ...Petitioner in W.P.No.30281 of 2007 G.Kumar ...Petitioner in W.P.No.30282 of 2007 Vs. 1. The Executive Engineer and Administrative Officer Anna Nagar Division Tamil Nadu Housing Board Chennai 40 2. The Chairman Tamil Nadu Slum Clearance Board Kamarajar Salai, Chennai ..Respondents in all the petitions Prayer in W.P.No.29946 to 29958, 30014 to 30018, 30281 and 30282 of 2007: Petitions filed under Article 226 of the Constitution of India praying for the issuance of Writs of Certiorari calling for the records relating to the order dated 31.8.2007 in Letter No.ANK/Survey/7518/88 of the 1st respondent and quash the same. https://hcservices.ecourts.gov.in/hcservices/ For Petitioners :Mr.AR.L.Sundarasean, Sr.counsel in all Petitions for Ms.AL.Ganthimathi For Respondents :Mr.P.S.Raman, Advocate General assisted by Mr.A.Vijayakumar Counsel for TNHB for R1 in all petitions Mr.Jaivenkatesh for R2 in all the petitions. COMMON ORDER Heard both sides. 2. The petitioners are occupants of the land in Town Survey No.2/2, Block No.12, Ayynavaram Village coming under Purasaivakkam- Perambur Taluk. The petitioners were given the impugned notices dated 31.8.2007 by the 1st respondent, Executive Engineer and Administrative Officer, Anna Nagar Division, Tamil Nadu Housing Board informing the petitioners that they were in illegal occupation of the said premises. They were given one week time to remove the encroachment failing which they were threatened with removal of the encroachments by the respondents, who will also collect the appropriate expenditure from the petitioners. 3. The petitioners have come forward to state that they were in occupation of the place for more than 25 years. Notices were given by the Tahsildar, Purasaiwakkam even during the years 1979, 1988 and 1998 under Section 5 of the Tamil Nadu Land Encroachment Act and penal rents were collected from them. Therefore, the assertion that the land belonged to the Tamil Nadu Housing Board was erroneous. It is also stated that the Housing Board had not followed the mandatory procedure contemplated under section 84 of the Tamil Nadu Housing Board Act, 1961 and no show cause notice was issued to them. It is further stated that as per the orders of the Government, they should be given alternative accommodation as was done in the case of other slum-dwellers from the very same area. It is also stated that even if the land belonged to the Tamil Nadu Housing Board, as per the Full Bench decision of this Court, the Board should take action either under the Tamil Nadu Housing Board Act or the Tamil Nadu Public Premises (Eviction of Unauthorised Occupants) Act by issuing Notices for removal of the encroachment. Therefore, the present Notices fall short of such a legal requirement. 4. Pending the Writ Petitions, the petitioners sought for an interim order. The learned Additional Advocate General undertook that the respondents will not proceed further for one week. Subsequently, the matter stood adjourned for several dates. 5. After taking notice, the 1st respondent had filed a counter affidavit dated 22.11.2009. In the counter affidavit, it was stated that the land in question, namely Town Survey No.2/2, Block No.12, https://hcservices.ecourts.gov.in/hcservices/ Ayanavaram Village was alienated to the Tamil Nadu Housing Board by the Revenue Department and is in possession of the Housing Board with effect from 1971 onwards. Therefore, no other person can claim right over the said property. It was also stated that the petitioners are encroachers and they are nothing but land grabbers. In the counter affidavit, they also referred to the Writ Petitions filed by various persons in respect of the very same property on earlier occasions. 6. Mr.P.S.Raman, learned Advocate General brought to the notice of this Court the order passed by a Division Bench of this Court presided by K.G.Blakrishnan, C.J (as he then was) in Writ Appeal No.2547 of 1999 dated 21.1.2000. 7. In that case, 64 persons belonged to that area initially filed a Writ Petition before this Court in W.P.No.5639 of 1991 seeking for a direction to the State Government to provide alternative accommodation in terms of G.O.Ms.No.1488 dated 3.11.1988 as well as the order passed by the Supreme Court before evicting the petitioners from the land in question. Though the Survey Number of the land was not given, in the petition for interim injunction the property was described as R.S.No.739-Part in the Main Road adjacent to old grave yard, MKB Nagar, Vyasarpadi, Chennai 39. A learned judge of this Court by his judgment dated 21.6.1999 dismissed the Writ Petition holding that the petitioners therein were not eligible to be covered in the Scheme made by the State Government. Aggrieved by the order, they had preferred the Writ Appeal. The Writ appeal filed by those persons came to be dismissed by a speaking order dated 21.1.2000. The Division Bench held that the petitioners did not fulfill the norms laid down by the Supreme Court . 8. In paragraphs 4 and 5 of the said order, it has been observed as follows: "4. From the above Government Order, it is clear that the benefit of the Government Order has to be given to the encroachers who had come to into occupation of the Government land on or before 30.6.1984. Though the appellants contended in the Writ Petition that they were in occupation of the land for more than a decade, they have not furnished any satisfactory evidence to prove their possession prior to 30.6.1984. The counsel for the appellants contended that they have got electricity connection and some of the encroachers have been furnished with ration cards. But these documents will not prove the case of the appellants that they were in possession of the land prior to 30.6.1984. In the counter filed by the Housing Board, it has been specifically stated that the appellants have encroached upon this land only in the year 1991. No reply has been filed denying the statement made in the counter. Therefore, one of the conditions to get https://hcservices.ecourts.gov.in/hcservices/ the benefit of the Government is not fulfilled. 5. The other condition is that the encroachers must occupy the land belonging to the Government but not of any public sector undertakings or Corporation. It is evident that the scheme was intended to evict the encroachers from the Government land. But referrence has been made to certain departments but they also form part of the Government. We do not think that the Government Order is intended to evict the encroachment from the property owned by the Housing Board which is an autonomous body. In such circumstances we see no reason to interfere with the order of the learned Single Judge and we hold that the learned single Judge was justified in rejecting the Writ Petition. We see no merit in the writ appeal and accordingly it is dismissed." (Emphasis added) 9. Therefore, on the strength of this Division Bench Order, the learned Advocate General stated that no indulgence can be shown to the petitioners. There is no infirmity in the order passed by the respondent Tamil Nadu Housing Board. He also submitted that invocation of Section 84 of the Tamil Nadu Housing Board Act is misconceived and the said provision will apply only to persons whose induction to the land owned by the Housing Board was lawful and thereafter either for overstayal or violation of the conditions of allotment, Section 84 of the Tamil Nadu Housing Board Act can be pressed into service. 10. Reliance was placed upon the Division Bench judgment of this Court in W.A.No.100 of 1994 pertaining to N.V.Annie vs. Tamil Nadu Housing Board and 2 others dated 1.7.1997. In this context, it is necessary to extract the following passage found in para 3 of the order and it reads as follows: "We are of the view that unauthorised occupation visualized in Section 84(1)(b) of the Act for the purpose of Section 84 (2) of the Act is of a person, whose initial occupation was legal, but subsequently has become unauthorised for any one of the defaults committed as provided in the other limbs of Section 84, and not to an utter stranger so far as the property of the Housing Board is concerned. Such a person, who is an encroacher, so to say cannot claim any protection under the provisions of the Act. Consequently we see no merit whatsoever in the challenge made or the grievance projected under section 84(2) of the Act." 11. In any event, the learned Advocate General also pointed out that some of the petitioners1 in these Writ Petitions had already attempted to move this Court earlier in Writ Petitions being W.P.Nos.17220 to 17226 of 1999 in Dawood Bi vs. the Executive https://hcservices.ecourts.gov.in/hcservices/ Engineer and Administrative Officer, Anna Nagar Division, Tamil Nadu Housing Board. In those Writ Petitions, this Court by an order dated 1.9.2003 held that the petitioners' claim involved disputed questions of fact, which cannot be gone into a Writ Petition filed under Article 226 of the Constitution. 12. In paragraph 6 of the order, it was observed as follows: "6. In the circumstances, this Court is of the considered view that this is not a fit case where a writ has to be issued as prayed for, instead it is made clear that it is open to the petitioners to go before the appropriate court and seek for declaration of their title or rights, if any, and it is also equally well open to the Housing Board to take action under the Tamil Nadu Public Premises (Eviction of Unauthorised Occupants) Act or under the Housing Board Act for removal of the alleged encroachers. With these observations, the Writ Petitions are dismissed." (Emphasis added) 13. Mr.AR.L.Sundarasean, learned senior counsel for the petitioners strenuously contended that his clients are aware of the petitions which came before this Court on the earlier action covered by the order of the Division Bench dated 21.1.2000. The petitioners have always been in possession and they are willing to show the records which are in their possession. He also submitted that the Housing Board is not the owner of the land and it is a revenue land. Therefore, the Tamil Nadu Land Encroachment Act alone can be pressed into service. The learned senior counsel for the petitioners further stated that the petitioners should be given some alternative accommodation as was done in the other cases of Slum dwellers of the very same area. 14. In any event, in the order dated 1.9.2003 this Court had directed the Tamil Nadu Housing Board that the provisions of the Tamil Nadu Public Premises (Eviction of Unauthorised Occupants) Act or the Tamil Nadu Housing Board Act will have to be invoked before the removal of the petitioners' encroachment. Such a reason finds justification from the Full Bench Judgment of this Court presided by P.K.Misra, J (as he then was) in Ramaraju vs. The State of Tamil Nadu reported in 2005 (2) CTC 741. In para 38(6), it was observed as follows: "(6). If the encroachment is on the land belonging to the Local Authorities, but such land is not part of the road or road margin or roadside land, eviction can be effected by following the procedure contemplated in law, namely, either by taking recourse to the Tamil Nadu Public Premises (Eviction of Unauthorised Occupants) Act, 1975 or any other law applicable or otherwise by taking recourse to Civil Court and not by use of unilateral force." https://hcservices.ecourts.gov.in/hcservices/ 15. In the light of the same, the Tamil Nadu Housing Board is entitled to proceed with the impugned Notice. The said Notices satisfy the minimum notice contemplated under the Public Premises Act. Hence, the Notice issued by the Tamil Nadu Housing Board will stand. It is open to the petitioners to submit any written explanation within a period of two weeks from today with supporting documents. If such an explanation is furnished, the respondents shall consider the said explanation and pass a speaking order before taking further action on the matter in question. Till such time the respondent's take a decision, status quo as on date will be maintained by both the parties. 16. The Writ Petitions are disposed of in the above terms. However, there will be no order as to costs. All the connected Miscellaneous Petitions stand closed. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar ajr To 1. The Executive Engineer and Administrative Officer Anna Nagar Division Tamil Nadu Housing Board Chennai 40 2. The Chairman Tamil Nadu Slum Clearance Board Kamarajar Salai, Chennai 1 cc To M/s.A.L.Gandhimathi, Advocate, SR.65954 1 cc To Mr.A.Vijayakumar, Advocate, SR.65658 W.P.Nos.29946 to 29958, 30014 to 30018 30281 and 30282 of 2007 SGL(CO) sra 16.12.2009 https://hcservices.ecourts.gov.in/hcservices/