Madras High Court
G.P.Rudhrashan vs The Tamil Nadu Slum Clearance ... on 24 August, 2023
W.A.Nos.891 to 894 of 2012
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 24.08.2023
CORAM :
THE HONOURABLE MR.JUSTICE D.KRISHNAKUMAR
and
THE HONOURABLE MR.JUSTICE P. B.BALAJI
W.A.Nos.891 to 894 of 2012 and
M.P.Nos. 1 +1 + 1 of 2012
G.P.Rudhrashan ... Appellant in
W.A.No.891/2012
Asmath Beevi ... Appellant in
W.A.No.892/2012
1. M.Chellaiah (died)
2. C. Hilda
3. C.Praveen
4. C.Rajasekaran
5. C.Vinu ... Appellants in
W.A.No.893/2012
(Appellants 2 to 5 are substituted for the
appellant as legal heirs of the deceased sole appellant
M.Chellaiah, vide order of Court dated 08.08.2023
made in CMP No.17742/2023 in W.A.No.893/2012.)
P.Balu ... Appellant in
W.A.No.894/2012
Page 1 of 20
https://www.mhc.tn.gov.in/judis
W.A.Nos.891 to 894 of 2012
Vs.
1. The Tamil Nadu Slum Clearance Board,
Rep. by its Chairman, No.5,
Kamarajar Salai, Chepauk,
Chennai 600 005.
2. The Executive Engineer, Division II,
Tamilnadu Slum Clearance Board,
13th Sector, 83rd Street, K.K.Nagar,
Chennai 600 078. ... Respondents 1 & 2
in all writ appeals
Meenakshi ... 3rd Respondent in
W.A.No.891/2012
S.Karunanidhi Thevar ... 3rd Respondent in
W.A.No.892/2012
E.K.Lakshmi ... 3rd Respondent in
W.A.No.893/2012
P.Thirumalaikumar ... 3rd Respondent in
W.A.No.894/2012
Prayer: Writ Appeals No.891 to 894/2012 have been filed under Clause 15
of Letters Patent to set aside the order passed by this Court in W.P.Nos.
16949, 16950, 16951, and 17625 of 2009 respectively, dated 23.08.2011.
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W.A.Nos.891 to 894 of 2012
In all writ appeals
For Appellant/s : Mr.K.Raja, Senior Counsel
for Mr.N.Kolandaivelu
For Respondents : Mr.G.Venkatesan, Standing Counsel
for respondents 1 and 2
Mr.B.Natarajan for third respondent
COMMON JUDGEMENT
(Judgment of the Court was delivered by D.KRISHNAKUMAR, J.)
These Intra Court Appeals in W.A.No.891 to 894/2012 have been
filed by the writ petitioners to set aside the common order passed in
W.P.Nos.16949, 16950, 16951, and 17625 of 2009 respectively, dated
23.08.2011, whereby the learned Single Judge has directed the Tamil Nadu
Slum Clearance Board to appoint a Committee of Engineers to determine
the market value of the encroached portion, covered by the impugned
eviction notice issued to the appellants/ writ petitioners and also to calculate
the interest at the rate of 12% from the date of encroachment till the date of
payment and after recovering the said cost from the appellants/writ
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W.A.Nos.891 to 894 of 2012
petitioners, the amount shall be paid to the persons proportionately, whose
original allotment was encroached by the appellants/writ petitioners in
proportion of that allotment; and in case the appellants/ writ petitioners
failed to honour their committment or failed to pay the amounts, the TNSCB
is at liberty to invoke the eviction proceedings.
2. The facts and circumstances of the case and the issues involved in
all the writ appeals are one and the same and hence, this Court passes the
common judgment.
3. The brief facts leading to the filing of the instant writ appeals are
as follows.
The appellants are the writ petitioners in the above writ petitions and
they were allotted plots by the Tamil Nadu Slum Clearance Board at 5th
Street, 6th Cross Street, Vijayaraghavapuram, Chennai-93. The details of
Plot number, measurement of plot and the date of allotment are given as
below.
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W.A.Nos.891 to 894 of 2012
Sl. Name of allottee Plot no. Measurement Date of
No of plot in allotment
sq.mtrs.
1 G.P.Rudhrashan 278 85.0 12.09.1988
(W.A.No.891/2012 in
W.P.No.16949/2009)
2 Asmath Beevi 285 166.0 14.03.1988
(W.A.No.892/2012 in
W.P.No.16950/2009)
3 M.Chelliah 279 76.0 10.09.1988
(W.A.No.893/2012 in
W.P.No.16951/2009)
4 Balu 277 80.0 21.03.1988
(W.A.No.894/2012 in
W.P.No.17625/2009)
(subsequent purchaser
from Kanagarathinam)
According to the appellants, the Tamil Nadu Slum Clearance Board had not
allotted the whole area, that are occupying them for more than three
decades, whereas, allotted the above said extent only for the reason that, the
remaining area felt on low-lying pond area, as per the records. The details
of occupied area by the appellants and the area allotted to them are extracted
hereunder.
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W.A.Nos.891 to 894 of 2012
Sl. Name of allottee Plot no. Occupied area Allotted remaining
No in sq.mtrs. area in area in
sq.mtrs. sq.mtrs.
1 G.P.Rudhrashan 278 114 85.0 0.29
(W.A.No.891/2012 in
W.P.No.16949/2009)
2 Asmath Beevi 285 184 166.0 0.18
(W.A.No.892/2012 in
W.P.No.16950/2009)
3 M.Chelliah 279 103.5 76.0 27.5
(W.A.No.893/2012 in
W.P.No.16951/2009)
4 Balu 277 108 80.0 0.28
(W.A.No.894/2012 in
W.P.No.17625/2009)
(subsequent purchaser
from Kanagarathinam)
Subsequently, a lease cum sale agreement was also entered into between the
appellants and the first and second respondent. Further, no objection
certificate was issued in favour of the appellants to obtain electricity service
connection, water and sewerage service connection and to avail the loan.
Since the date of allotment, the appellants have been enjoying the above
said allotted plots along with their occupied portion, by raising pucca
construction and they had also paid the amounts regularly, as demanded by
the first and second respondent. While that being so, when the appellants
are under the impression that the sale deed would be executed in their
favour, the second respondent issued a show cause notice dated 10.08.2009,
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directing the appellants to remove the encroachment on or before
21.08.2009. Challenging the above said order, the appellants had filed
W.P.Nos.16949 to 16951 and 17625/2009. The Writ Court has taken the
above writ petitions along with W.P.No.19699/ 2009 and Cont.Petn.
No.120/2010 and passed the common order, by directing the Tamil Nadu
Slum Clearance Board to appoint a Committee of Engineers to determine
the market value of the encroached portion, and recover the same from the
appellants and to pay that amount to the original allottees. Aggrieved by the
above said order, the appellants have filed the present appeals.
4. The learned counsel for the appellants submitted that the appellants
came to know that third respondent in W.A.No.891 to 894/2009
respectively, had filed W.P.No.12732/2005 along with six others, as against
the Tamil Nadu Slum Clearance Board to execute the sale deed in respect of
Plot Nos.420/1 to 420/10, in S.No.201, admeasuring 1151 sq.mtrs. in Old
Vijayaraghavapuram, in which some portions have been occupied by the
appellants and the same was allowed. As against the above said order, the
Slum Clearance Board had filed W.A.No.166/2006 and also one
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W.A.Nos.891 to 894 of 2012
Paramasivam, third party had filed W.A.No.1336/2005 and the same were
ended against them, vide order dated 23.03.2006. The Slum Clearance
Board had also filed SLP (Civil) No.8480/2006 and it was also dismissed on
12.05.2006 by the Hon'ble Supreme Court.
4.1.He further submitted that, the above order in W.A.No.12732/2005
was passed, without impleading the appellants herein, who have been
occupied and in possession of the portion of the property, allotted to the
third respondent in all the writ appeals. He further submitted that, the Slum
Clearance Board had allotted the plots to the appellants only to an extent as
stated supra and not allotted the whole area occupied by them, because, the
remaining area is a low-lying pond area, as per the records. However, the
officials concerned, colluding with the third respondent in the appeals, had
issued the allotment order illegally in favour of them and six others, with
respect to the Plot no.420/1 to 420/10 and subsequently, they had filed
Cont.Petn.No.287/2006 for non compliance of the order passed in
W.P.No.12732/2005 and it was also allowed on 19.01.2007.
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4.2. The learned counsel further submitted that, there was no scheme
and also there is no pathway to Plot No.420/1 to 420/10. However, the
official concerned had created the illegal allotment order and for the same,
disciplinary proceedings was initiated against the erred employees. Further
more, the third respondent in the writ appeals have not been residing in the
allotted plots, whereas, for more than three decades, the appellants have
been in possession and enjoyment of the allotted land along with the
occupied portion, by raising pucca construction and even if the same is said
to have been encroachment, the same cannot be segregated. Therefore, the
appellants are entitled to get allotment in their favour for the occupied/
encroached portion.
4.3. The learned counsel also submitted that, without considering the
fact that the appellants are in possession of the property in question for more
than three decades and also without taking int account that the third
respondent in the writ appeals are not in possession of the plots, the writ
court has passed the order, that too beyond the scope of the prayer, directing
to fix the market value of the property and to recover the same with 12%
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W.A.Nos.891 to 894 of 2012
interest from the appellants from the date of encroachment, which is
unsustainable. Therefore, he seeks to set aside the order passed by the
learned single judge.
5. The learned Standing Counsel appearing for the first and second
respondents submitted that, pursuant to the impugned order passed by the
learned Single Judge, the Tamil Nadu Slum Clearance Board had
constituted a Committee of the Board Engineers to determine the market
value of the encroached land by the appellants and obtained their report. He
further submitted, as per their report, the amounts to be remitted by the
appellants/ writ petitioners have been calculated and the same was
communicated to them to remit the same, vide notice dated 15.02.2012.
5.1. He further submitted that, since the order of the writ Court in
W.P.No.12732/2005 has become final, the Department had issued the
eviction notice to the appellants to remove the encroached portion made by
them and to give vacant possession. Since the appellants were not allotted
the land in question, it can be construed only as an encroachment and hence,
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W.A.Nos.891 to 894 of 2012
they have no legal right to challenge the above eviction notice. Therefore,
he seeks for dismissal of the appeals.
6. The learned counsel appearing for the third respondent vehemently
opposed the contentions made by the appellants and submitted that,
originally the plots in question was allotted to the third respondent in the
instant appeals and they had complied with all the conditions as mentioned
in the allotment order and hence, they are entitled for getting sale deed in
their favour, however, the Tamil Nadu Slum Clearance Board has refused to
execute the sale deed. Therefore, they filed W.P.No.12732/2005 and it was
allowed and the appeals preferred by the Department before the Division
Bench of this court as well as before the Hon'ble Supreme Court had also
ended against them and hence, the order passed in the above writ petition
has become final. As such, the appellants have no locus standi to challenge
the impugned eviction notice and hence, he seeks for dismissal of the
appeal.
7. Heard the learned counsel for the appellants and the learned
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W.A.Nos.891 to 894 of 2012
standing counsel for the respondents 1 and 2 and the learned counsel for the
third respondent. Also, we have perused the materials on record.
8. It is an admitted fact that the appellants namely i) G.P.Rudhrashan,
ii) Asmath Beevi, iii) M.Chelliah and iv) P.Balu were allotted plot No.278
to an extent of 85.0 sq.mtrs.; 285 to an extent of 166.0 sq.mtrs.; 279 to an
extent of 76.0 sq.mtrs.; and 277 to an extent of 80.0 sq.mtrs. respectively in
the Vijayaraghavapuram Village. However, they have encroached a portion
the land, which is allotted to the third respondent in the writ appeals.
9. The appellants themselves admitted that, they have not been
allotted the full area occupied by them and they were allotted only a part of
area as stated earlier, and the remaining portion, which is said to be as
encroachment, as stated supra, is also under their possession. It is their
contention that, they have been in continuous possession of the allotted area
along with the remaining area/ encroached area by putting up pucca
construction and they have been granted permission by the authorities
concerned to obtain electricity service connection and water and sewerage
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W.A.Nos.891 to 894 of 2012
connection. The appellants further contended that they have also made a
request to the Board to allot the remaining area also, which is under their
occupation, however, since some complaints have been preferred against
such allotment, the same has been cancelled. In such circumstances, the
appellants were served eviction notice by the board to give vacant
possession of the encroached land and it was challenged by way of filing
writ petitions. According to the appellants, without considering their case in
proper perspective, the learned single judge has dismissed the writ petition.
10. It is the contention of the learned counsel for the appellants that,
the learned single judge, beyond the scope of the prayer of the writ
petitions, has discussed the matter and has given a direction to the
appellants to pay the market value of the encroached portion along with
12% interest, without any justification and hence, the order of the writ court
is liable to be set aside.
11. At this juncture, it is relevant to extract the extent of
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W.A.Nos.891 to 894 of 2012
encroachment made by the appellants and its market value along with 12%
interest, as per the report of the Committee of the Board Engineers, as
evidenced by a notice dated 15.02.2012, sent by the Board to the appellants,
which is as below.
Sl. Name of allottee Plot no. extent of market market Total
No encroachme value/ value for amount
nt sq.ft. the including
encroached 12% for
area 23 years of
in Rs. encroach
ment
in Rs.
1 G.P.Rudhrashan 420/7 29.00 7500 23,40,300 87,99,528
(W.A.No.891/2012 in sq.mtrs.
W.P.No.16949/2009) 312 sq.ft.
2 Asmath Beevi 420/1 18.00 7500 14,52,600 54,61,776
(W.A.No.892/2012 in sq.mtrs.
W.P.No.16950/2009) 194 sq.ft.
3 M.Chelliah 420/6 27.50 7500 22,19,250 83,44,380
(W.A.No.893/2012 in sq.mtrs.
W.P.No.16951/2009) 296 sq.ft.
4 Balu 30.00 7500 24,21,00 91,02,960
(W.A.No.894/2012 in sq.mtrs.
W.P.No.17625/2009) 323 sq.ft.
(subsequent purchaser
from Kanagarathinam)
12. The factum of i) filing of W.P.No.12732/2005 by the third
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W.A.Nos.891 to 894 of 2012
respondent and others and the order of the writ court; ii) filing of
W.A.No.166/2006 by the Department and the order of dismissal by a
Division Bench of this Court; iii) and filing of the SLP (Civil)
No.8480/2006 by the Department and the order of dismissal by the Hon'ble
Supreme Court are not denied by either parties and the order passed in
W.P.No.12732/2005 has become final.
13. It is the contention of the third respondent in the writ appeals that
the order passed in the writ petition in W.P.No.12732/2005 has become
final, however, due to the pendency of the litigation, the Board has not
executed the sale deed in their favour, especially, in respect of the disputed
area encroached by the appellants herein. It is submitted by him that the
third respondent in the writ appeals are interested only in respect of
executing the order of the writ court in W.P.No.1273/2005 and handing
over the possession of the property to them.
14. Though the appellants have contended that they have been in
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continuous possession of the encroached portion for more than three
decades, that cannot be considered as a ground for not taking steps to
remove the encroachment. It is argued by the learned counsel for the
appellants that the allotment of plots No.420/1 to 420/10 in favour of the
third respondent in the writ appeals and six others, was made illegally by the
official concerned in collusion with the third respondent. A perusal of the
records also reveal that disciplinary action was taken against the erred
employees. However, to execute the sale deed with respect to the allotted
plots, already writ petition in W.P.No.12732/2005 had been filed by the
allottees/ third respondent herein, which was decided in their favour and it
went up to the Supreme Court and reached finality. Therefore, the
encroachment made by the appellants in the plots allotted to the third
respondent, definitely has to be removed and hence, the impugned notice for
eviction of the encroached portion, sent by the Board is legal and that
cannot be quashed.
15. As far as the direction given by the writ Court with regard the
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W.A.Nos.891 to 894 of 2012
determination of the market value of the encroached portion and to recover
the same along with interest at 12% p.a. from the appellants is concerned,
we are of the view that, it requires for reconsideration by this court.
Because, the appellants themselves admitted that they made encroachment
in the land allotted to the allottees/third respondent in the writ appeals and
they have been in continuous possession. To remove the above
encroachment, the Board had also issued eviction notice. But, without any
justification, the learned Single Judge has directed the Board to recover
market value of the encroached portion along with 12% interest from the
appellants and to pay the same to the third respondent as compensation. As
evidenced by the notice given by the Board dated 15.02.2012, the market
value along with interest for the encroached portion comes to several Lakhs
and in some cases comes to nearby Crores. Further, if the same would be
calculated up to the year of 2023, it would come to several crores.
16. At this juncture, the learned counsel for the third respondent in all
the writ appeals has not raised any objection to interfere with the above
direction of the learned Single Judge. Therefore, accepting the contention
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of the appellants, we inclined to interfere with the order of the learned
Single Judge, only in respect of the above direction alone. In so far as the
other observation made by the learned Single Judge that the " the TNSCB is
at liberty to invoke the eviction procedure available to them under the
Tamil Nadu Slum Clearance Board (Management and Control of
Properties) Act, 1971, in case the writ petitioner failed to honour their
commitment or failed to pay the amount " is concerned, it does not warrant
any interference by this Court.
17. Accordingly, it is ordered as follows.
i) The order of the writ court with regard to the direction given to the
Tamil Nadu Slum Clearance Board as “ to appoint a Committee of
Engineers to determine the market value of the encroached portion, covered
by the impugned eviction notice issued to the appellants/ writ petitioners
and also to calculate interest at the rate of 12% from the date of
encroachment till the date of payment; After recovering the said cost from
the writ petitioners, the amount shall be paid to the persons
proportionately, whose original allotment was encroached by the writ
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petitioners in proportion of that allotment.” alone is set aside and the
remaining observation made by the learned single judge is confirmed.
ii) The respondent Board is directed to initiate eviction proceedings
in so far as the encroachment made by the appellants in the respective lands,
within a period of twelve weeks from the date of receipt of a copy of this
order.
18. With the above directions, the writ appeals are partly allowed. No
costs. Consequently, connected miscellaneous petitions are closed.
(D.K.K.J.) (P.B.B.J.)
24.08.2023
Internet: Yes/No
Index : Yes/No
mst
To
1. The Chairman, Tamil Nadu Slum Clearance Board,
Kamarajar Salai, Chepauk,Chennai 600 005.
2. The Executive Engineer, Division II,
Tamilnadu Slum Clearance Board,
13th Sector, 83rd Street, K.K.Nagar, Chennai 600 078.
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W.A.Nos.891 to 894 of 2012
D.KRISHNAKUMAR, J.
and
P. B.BALAJI, J.
mst
W.A.Nos.891 to 894 of 2012
24.08.2023
https://www.mhc.tn.gov.in/judis
