Madras High Court
M.Kumar vs The Government Of Tamil Nadu on 18 November, 2014
Author: K.B.K.Vasuki
Bench: K.B.K.Vasuki
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 18.11.2014 CORAM: THE HONOURABLE Ms.JUSTICE K.B.K.VASUKI W.P.Nos.19154 & 19155 of 2004 and 30002 & 30003 of 2005 and M.P.Nos.23070 & 23073 of 2004 and 32887, 32888, 32890 & 32891 of 2005 W.P.Nos.19154 of 2004: 1.M.Kumar 2.V.Purushothaman 3.R.Saroja 4.K.Jayaraman 5.N.Raja 6.B.Varadhan 7.L.Varadhan 8.P.Ranganathan 9.G.Kanniammal 10.P.Ekambaram 11.G.Siva 12.B.Kumar 13.S.M.Parasuraman 14.G.Meenakshi 15.J.Narayanasami 16.M.Murugesan 17.V.Subramani 18.A.Sivakumar .. Petitioners Vs. 1.The Government of Tamil Nadu, represented by its Secretary, Department of Housing and Urban Development, Fort St. George, Chennai 600 009. 2.The Chairman, Tamil Nadu Slum Clearance Board, Chennai 600 005. 3.The Chairman, Tamil Nadu Electricity Board, Chennai 600 002. 4.S.Manjula .. Respondents PRAYER: Writ Petition filed under Article 226 of the Constitution of India, praying to issue a Writ of Declaration, to declare G.O.Ms.No.298, dated 27.07.1998, r/w G.O.Ms.No.287, dated 14.11.2003, issued by the first respondent herein as illegal and unconstitutional and consequently direct the respondents 1 & 2 to improve the slum area covered by G.O.Ms.No.298, dated 27.07.1998, providing all amenities like shelter, water, sewage and electricity. (Prayer in the writ petition amended as per the order of this Court, dated 30.06.2014, made in W.P.M.P.No.143 of 2014 in W.P.No.19154 of 2004) W.P.Nos.19155 of 2004: 1.M.Kumar 2.V.Purushothaman 3.R.Saroja 4.K.Jayaraman 5.N.Raja 6.B.Varadhan 7.L.Varadhan 8.P.Ranganathan 9.G.Kanniammal 10.P.Ekambaram 11.G.Siva 12.B.Kumar 13.S.M.Parasuraman 14.G.Meenakshi 15.J.Narayanasami 16.M.Murugesan 17.V.Subramani 18.A.Sivakumar .. Petitioners Vs. 1.The Government of Tamil Nadu, represented by its Secretary, Department of Housing and Urban Development, Fort St. George, Chennai 600 009. 2.The Chairman, Tamil Nadu Slum Clearance Board, Chennai 600 005. 3.The Chairman, Tamil Nadu Electricity Board, Chennai 600 002. 4.A.K.Seshadri (died) 5.S.Manjula 6.S.Lavanya 7.S.Anand 8.S.Mamatha .. Respondents (R5 to R8 impleaded as LRs in the place of the deceased 4th respondent as per the order of this Court dated 12.06.2014, in W.P.M.P.No.80 of 2014) PRAYER: Writ Petition filed under Article 226 of the Constitution of India, praying to issue a Writ of Declaration, to declare G.O.Ms.No.415, dated 09.11.1998 r/w G.O.Ms.No.287, dated 14.11.2003, issued by the first respondent herein as illegal and unconstitutional and consequently direct the respondents 1 & 2 to improve the slum area covered by G.O.Ms.No.415, dated 09.11.1998, providing all amenities like shelter, water, sewage and electricity. (Prayer in the writ petition amended as per the order of this Court, dated 30.06.2014, made in W.P.M.P.No.144 of 2014 in W.P.No.19155 of 2004) W.P.Nos.30002 & 30003 of 2005: N.Periyasamy .. Petitioner in W.P.No.30002/2005 A.Veerasamy .. Petitioner in W.P.No.30003/2005 Vs. 1.The Government of Tamil Nadu, represented by its Secretary, Department of Housing and Urban Development, Fort St. George, Chennai 600 009. 2.The Chairman, Tamil Nadu Slum Clearance Board, Chennai 600 005. 3.The Chairman, Tamil Nadu Electricity Board, Chennai 600 002. 4.A.K.Seshadri (died) 5.S.Manjula 6.S.Lavanya 7.S.Anand 8.S.Mamatha .. Respondents (R5 to R8 are impleaded as LRs of the deceased 4th respondent as per the order of this Court, dated 12.06.2014, in W.P.M.P.Nos.81 & 82 of 2014 in W.P.No.30002 & 30003 of 2004) COMMON PRAYER: Writ Petitions filed under Article 226 of the Constitution of India, praying to issue a Writ of Certiorarified Mandamus, to call for the records in G.O.Ms.No.415, dated 09.11.1998 issued by the first respondent herein and to quash the same as arbitrary, illegal and unconstitutional and consequently direct the respondents 1 & 2 to improve the slum area covered by G.O.Ms.No.415, dated 09.11.1998, including providing all amenities like shelter, water, sewage and electricity. For petitioners in W.P.Nos.19154 & 19155/2004 : M/s.R.Vaigai & Anna Mathew For petitioners in W.P.Nos.30002 & 30003/2004 : M/s.Ramalingam Associates For 1st respondent in all W.Ps. : Mr.RM.Muthukumar, Government Advocate For 2nd respondent in all W.Ps. : Mr.P.Jeganath For 3rd respondent in all W.Ps. : Mr.G.Vasudevan (No appearance) For 4th respondent in W.P.No.19154/2004 & respondents 5 to 8 in W.P.Nos.19155, 30002 & 30003 of 2005 : Mr.N.Jothi, Senior Counsel for Mr.M.C.Govindan COMMON ORDER
The relief sought for in all the writ petitions is in respect of the lands called as "Dhanakoti Ammal Thottam", measuring 11 grounds and 680 sq. ft. situated at T.S.No.5267, Puliyur Village, Madras Central Taluk, Madras City. The writ petitions are filed for setting aside the G.Os. issued in favour of the individual respondents by name Manjula and A.K.Seshadri, thereby denotifying 11 grounds and 680 sq. ft. as slum area.
2.The facts which are relevant for consideration herein are;
(a) An extent of 15 grounds and 2,333 sq. ft. at T.Nagar Village, Mambalam-Guindy Taluk, called as "Dhanakotti Ammal Thottam", originally belonged to third parties. The total extent was under G.O.Ms.No.426, Labour (Housing), dated 14.03.1972, declared as slum area under Section 3 of the Tamil Nadu Slum Areas (Improvement and Clearance) Act, 1971 (hereinafter referred to as "Act 1971"). As the land belonging to individuals, the declaration so made did not affect the title of the respective owners of the private slum. The only restriction imposed on the land owners under Section 29 of the Act is that the slum dwellers residing in the slum area should not be evicted without the permission of the Slum Clearance Board. The notice under Section 11(1) of the Act was also issued to the names interested persons to show cause as to why the area should not be declared as slum clearance area. The Land Acquisition Officer and the Special Deputy Collector, Madras City, also issued notice, dated 10.03.1979, inviting objections for acquisition of the lands. However, no further action was taken in pursuance of Section 11 and acquisition notices.
(b) While so, the fourth respondents in W.P.Nos.19154 & 19155 of 2004 by names Manjula and her husband A.K.Seshadri, since deceased, purchased the major portion of the area in Dhanakotti Ammal Thottam measuring 11 grounds and 680 sq. ft. under four sale deeds, dated 24.10.1986, 25.10.1986 and 03.04.1987 from one E.Ramakrishnan and Ramanathan, and A.K.Seshadri and Manjula, in pursuance of the sale in their favour, approached the second respondent - the Chairman, Tamil Nadu Slum Clearance Board to denotify their lands as slum area by issuing withdrawal notification. On their representation, the second respondent passed a resolution No.26, dated 18.01.1989, thereby resolving to denotify the land in question and the resolution was duly sent to the first respondent / Government. The first respondent, having accepted the same, issued G.O.Ms.No.298, Housing and Urban Development Department, dated 27.07.1998 and G.O.Ms.No.415, Housing and Urban Development Department, dated 09.11.1998, in and under which the Government decided to denotify the land in question and imposed conditions on Manjula and A.K.Seshadri for withdrawing 1972 notification. The conditions imposed are that the slum dwellers should be accommodated in alternative place and the slum dwellers shall not be evicted without seeking permission from the Slum Clearance Board and requisite amount shall be deposited for the rehabilitation of the slum dwellers.
(c)In the meanwhile, the fourth respondent has approached this Court by way of W.P.No.11369 of 1994 for a direction to the respondents to issue necessary denotification order in respect of the lands in question. The writ petition was disposed of on 28.06.2001, thereby directing the first respondent - Government and the second respondent - Slum Clearance Board to pass appropriate consequential orders within the time specified in the order. Thereafter, the second respondent - Slum Clearance Board approached this Court by way of WPMP.No.13299 of 2002 to modify the order, dated 28.06.2001. WPMP was disposed of by this Court on 24.01.2002 on the basis of the undertaking given by the learned counsel for the Slum Clearance Board and the Slum Clearance Board was directed to communicate the development charges referred to in G.O.Ms.Nos.298 and G.O.Ms.No.415, to A.K.Seshadri and his wife Manjula with all details within 30 days and on receipt of such communication, the owner was directed to remit the development charges to the Slum Clearance Board within 30 days from the date of the communication and thereafter, the Slum Clearance Board to comply with the other terms of the Government Order.
(d) In pursuance of the said order, the second respondent Board intimated the cost of the development charges of Rs.5,92,103.34 which was remitted by the land owners Manjula and A.K.Seshadri. The land owners also have given an undertaking to the second respondent Board that the alternative site offered by them were approved plots by CMDA and if the plan for approval is not accepted by CMDA, the land owners agreed to bear the costs of the alternative tenements provided by the second respondent to the slum dwellers. Whereas CMDA also approved Perumbakkam lay out and planning permit was also obtained from CMDA for the alternative site at Perumbakkam. In pursuance of the compliance with the conditions, the first respondent based on the proceedings of the second respondent, dated 27.06.2003 issued G.O.Ms.287, dated 14.11.2003, Housing and Urban Development Department, thereby denotifying the lands in T.S.No.5267/2 comprising an extent of 11 grounds 680 sq. ft. and the same was also subsequently published in the Government Gazattee on 26.11.2003. The first respondent Government has under G.O.Ms.No.287, dated 14.11.2003, withdrawn the notification made under G.O.Ms.No.426, dated 14.03.1972, issued under Section 3(1) of the Act 1971. Aggrieved against the same, the petitioners herein, claiming themselves to be the occupants of the slum area in question, have come forward with the present writ petitions for the relief stated therein.
3.Originally all the four writ petitions are filed for issuance of writ of declaration, declaring G.O.Ms.No.298, dated 27.07.1998 and G.O.Ms.No.415, dated 09.11.1998, as illegal and unconstitutional and to consequently direct the first respondent Government and the second respondent - Slum Clearance Board to improve the slum area covered by G.O.Ms.Nos.298 & 415, by providing all amenities like shelter, water, sewage and electricity. Whereas the respondents have, after having entered appearance, filed detailed counter regarding the circumstances under which the resolution was passed by the Slum Clearance Board and the issuance of G.O.Ms.No.268, dated 11.03.1998, issued by the Government accepting the resolution passed by the second respondent and issuance of G.O.Ms.No.298, dated 27.07.1998 and G.O.Ms.No.415, dated 09.11.1998 and the orders made in W.P.No.11369 of 1994 and WPMP.No.13299 of 2002 and issuance of G.O.Ms.No.287, dated 14.11.2003 withdrawing the earlier notification issued under Section 3(1) of the Act, etc. In the counter filed on behalf of the second respondent, dated 09.02.2005, it is specifically stated that the writ petitions are not maintainable for delay and laches and for the failure of the writ petitioners to challenge the final order passed in G.O.Ms.No.287, dated 14.11.2003. The writ petitioners, inspite of the counter so filed, did not think fit to come forward with any amendment petition to amend the nature of the relief immediately thereafter. The writ petitioners in W.P.Nos.19154 and 19155 of 2004 have come forward with the amendment petition in WPMP.Nos.143 & 144 of 2014 to amend the prayer in the main writ petition only in the course of arguments during June 2014 and the amendment was ordered by adding the relief challenging G.O.Ms.No.287, dated 14.11.2003 in W.P.No.19154 and 19155 of 2004. The prayer in the writ petitions in W.P.Nos.30002 and 30003 of 2005 even after the counter so filed by the second respondent remain unamended.
4.The learned senior counsel for the petitioners in W.P.Nos.19154 and 19155 of 2004 would attack the validity of the G.Os. mainly on the following grounds;
(a)The land belongs to Parthasarathi Temple, Triplicane, Chennai and the fourth respondent in both the writ petitions i.e., A.K.Seshadri and his wife Manjula can make no valid claim to the property on the strength of the sale deeds standing in their names, which are bogus in nature.
(b)The impugned orders denotifying the land in question as slum area came to be passed on the wrong premises as if the same belongs to the individuals.
(c)The Government Orders stands vitiated for want of any notice and personal hearings to the occupants of the same, who are the persons interested and the same is in violation of the principles of natural justice.
5.On the contrary, the learned Government Advocate representing the respondents officials and the learned senior counsel appearing for the contesting individual respondents would seriously oppose the relief on the following grounds;
(i)The claim of the petitioners suffers from delay and laches. The petitioners having come to know about the entire circumstances under which various G.Os. are passed, have not chosen to seek appropriate remedy challenging the G.Os. within the reasonable time. The conduct of the petitioners in approaching this Court seeking the amended relief at the fag end of the proceedings is hopelessly hit by laches.
(ii) The petitioners have no locus standi to maintain the claim for want of any evidence to show their continuous occupation of the land in question, as such they are neither occupants nor the interested persons as defined under the Act and therefore, the question of issuing any notice for giving an opportunity of personal hearing to the petitioners before issuing G.Os. does not arise herein.
(iii)The claim that the land in question belongs to Parthasarathi Temple is for the first time raised in these writ petitions without impleading the said Temple as one of the respondents herein. Till date, the Parthasarathi Temple has not made any valid claim on the basis of any legally acceptable evidence to prove their ownership, whereas the particulars available through the encumbrance certificates would go to prove the various transactions between individuals in respect of the same property during 1955-2013.
6.Heard the rival submissions made on both sides and perused the records.
7.The writ petitions are filed by the individuals claiming themselves to be the occupants of the area viz., "Dhanakotti Ammal Thottam" for setting aside the Government Orders issued in favour of the respondents by name A.K.Seshadri and his wife Manjula for denotifying the slum area subject to fulfillment of certain conditions by the individuals.
8.The land in question is declared as slum area under Section 3(1) of the Act through G.O. of the year 1972. The proceedings for denotifying the property as slum area is commenced as early as during 1998 by way of resolution passed by the second respondent Slum Clearance Board and G.O.Ms.No.268, Housing and Urban Development Department, dated 19.03.1998, thereby the first respondent has taken policy decision by accepting the resolution of the second respondent Board to denotify the slum area and the same is followed by G.O.Ms.No.298, dated 27.07.1998 and G.O.Ms.No.415, dated 09.11.1998. However, the writ petitions are filed during 2004 only against G.O.Ms.Nos.298 & 415. Thereafter, only during 2014 the relief was sought to be amended in two out of four writ petitions and it was amended by challenging the subsequent G.O.Ms.No.287, dated 14.11.2003. While doing so, the petitioners have not challenged the first Government Order in G.O.Ms.No.268, dated 11.03.1998, wherein the Government had taken policy decision to denotify the slum area. Though the resolution of the Slum Board and various G.Os. under which denotification process taken are mentioned in detail in the counter filed by the respondents during 2005, the petitioners did not come forward with the amendment prayer till 2014. They waited for nearly a decade to think fit to challenge one of the main G.Os. Even then no steps is taken to challenge the first G.O. in this regard. Though the stand taken by the petitioners that there can be no presumption that every one knows the law and the petitioners cannot be expected to know about all the G.Os. passed, is supported by the Hon'ble Apex Court in the judgment reported in 1929 (2) SCC 409 (M/s.Motilal Padampat Sugar Mills Co. Ltd., Vs. State of U.P. and others), such ground is not available to the petitioners for the simple reason that they are put on notice about various G.Os. in the counter filed during 2005 and even thereafter the petitioners have not acted promptly in seeking the amendment and in seeking appropriate relief against the appropriate G.Os. As rightly argued by the learned counsel for the petitioners, such delayed action taken on the part of the petitioners hit the writ petitions by principles of laches.
9.The stand taken by the learned senior counsel for the individual respondents regarding the laches is also fortified by the observation of the Hon'ble Apex Court in the following judgments;
(i)AIR 1967 SC 993(1) (K.V.Rajalakshmiah Setty and another Vs. State of Mysore and another).
(ii)AIR 1970 SC 769 (Durga Prasad Vs. The Chief Controller of Imports and Exports and others)
(iii)AIR 1976 SC 1639 (State of Orissa Vs. Shri Arun Kumar Patnaik and others)
(iv)AIR 2007 SC 1330 (Shiva Dass Vs. Union of India and others).
10.In all these cases, the Supreme Court has emphasised the need for approaching the Court within the reasonable time. The Supreme Court has in one of the judgments reported in AIR 1970 SC 769 was of the view that even if breach of fundamental right is involved, the matter is still in the discretion of the High Court and the High Court in its discretion can refuse to issue the writ because of the laches of the applicant. In the judgment reported in AIR 2007 SC 1330, the Hon'ble Supreme Court has fixed the period of three years normally within which to approach the Court for any relief. In that case, the matter was remitted back with a direction that in no event the relief can be granted for the period exceeding three years from the date of the presentation of the writ petition. Even in the judgment cited on the side of the petitioners reported in 1988 (4) SCC 387 (Larsen & Torbro Ltd. Vs. State of Gujarat and other), the Supreme Court is of the view that the writ petition challenging the notifications is liable to be dismissed on the ground of delay and laches, if the challenge is not made within a reasonable time. It is further observed in the case arising out of Land Acquisition Act that the petitioner cannot sit on the fence and allow the State to complete the acquisition proceedings on the basis that notification under Section 4 and the declaration under section 6 were valid and then to attack the notifications on the grounds which were available to him at the time when these were published as otherwise it would be putting a premium on the dilatory tactics.
11.It may be true that no knowledge can be attributed to the petitioners about the notification issued in the year 1988, 1998 and 2003 immediately after the issuance of the same, however, when the petitioners are put on notice about the same by way of counter filed in 2005, the amendment sought for in 2014, that too only in respect of one of the latest G.Os and not in respect of the first G.O., the writ petitions would suffer by laches. There is absolutely no explanation forthcoming on the part of the petitioners for not seeking the relief at the earliest possible time.
12.As far as the claim made by the petitioners regarding their occupation of the area in question is concerned, the same is not substantiated by way of any legally permissible material. It is true that the second respondent - Slum Clearance Board has issued show cause notice under Section 11 of the Act for declaring the area as Slum Clearance Area and the notice, dated 20.01.1975, contains the names of 99 persons as the persons interested. Similar notice issued for acquisition of the lands on 10.03.1979, which is enclosed at page Nos.7 to 9 of the typed set filed by the petitioners in W.P.No.19154 of 2004, contains only the names of 28 persons. Admittedly names of all the persons listed in the notices as above referred to are not shown to be in the occupation of the property in question. According to the petitioners, they are kith and kin of the persons who were originally in the occupation. The documents produced herein to show their possession are the voters list relating to the period 1995-2001 and the copy of the representation, dated 26.02.2004, given by some of the petitioners on behalf of slum dwellers of "Dhanakotti Ammal Thottam", addressed to Tamil Nadu Slum Clearance Board. All these documents are more in the nature of self-serving documents. Even otherwise the representation refers to the occupation of only 38 occupants, that means all the persons mentioned in the notices are not in the occupation of the lands. Absolutely no record is produced to show that the petitioners herein are in the occupation of either the land or the land with building, as claimed by them in the writ petitions.
13.It is true that the Tahsildar has in his proceedings, dated 07.07.1999, referred to the petition filed by one Kanniammal, who is shown as 9th petitioner in W.P.Nos.19154 & 19155 of 2004 for transfer of patta in her name and though G.O.Nos.298 & 415 would mention about the occupation of few dwellers, there is no document to show the actual occupation among the petitioners in the land in question. Though Section 4 of the Act provides for filing statement by the owner or occupier in such form as may be prescribed to the authority concerned for the purpose of registering the same in a register maintained for issuing registration certificate to the owner or occupier in the building in the prescribed form and though the petitioners numbering 20 claim to have been in the occupation of the building, no such statement is shown to be made by the petitioners to the authority concerned and no such registration certificate is produced by them evidencing their occupation in the lands in question. The fact remains undisputed is that except the voters lists, no other authenticated document is produced to show that the actual occupation of the area in question by the petitioners.
14.The petitioners have also relied on the communication issued by the second respondent Slum Clearance Board to one G.Singaravelu Gramani, Door No.17, 'Dhanakotti Ammal Thottam' to the effect that the slum dwellers cannot be evicted without prior permission of Tamil Nadu Slum Clearance Board. The same is in no way helpful to the petitioners as the same is issued on 22.09.1987 much before the denotification process was commenced. The next document relied on by the petitioners is the communication, dated 16.12.1987, issued by the second respondent Board to one Rajamani, Door No.15 'Dhanakotti Ammal Thottam', to the effect that the Slum Clearance Board has no objection for the occupants to get the electricity connection on their own. The same need not be relied upon as Rajamani is not shown as one of the petitioners herein and as the same is much before the denotification process was commenced.
15.The next aspect to be seen is the denial of ownership of the individual contesting respondents and the setting up of the title on temple. The petitioners have relied on the following documents in support of their claim that the property belongs to Parthasarathi Temple.
(a) The communication of the Tahsildar addressed to Gnanamani Ammal, dated 25.06.1999, to the effect that as the property belongs to Parthasarathi Temple, no patta transfer can be issued in the name of applicant.
(b) The communication issued by the Tahsildar to the Executive Engineer, TNEB, dated 08.06.1988, to the effect that the land belongs to Parthasarathi Swamy Temple.
(c) The notice purported to be issued by Parthasarathi Temple calling upon the occupants to approach the temple concerned for regularisation of their tenancy failing which to take action for their eviction.
However, except the communication above mentioned, no other record in the form of any title deed standing in the name of Parthasarathi Temple in respect of the land in question is produced before this Court.
16.This Court is, at this juncture, inclined to refer to the particulars mentioned in the encumbrance certificates relating to the period between 18.01.1995 to 31.12.1970 and 01.01.1987 to 13.10.2013 produced on the side of the individual respondents which reflect various transactions effected between the individuals in respect of the same property for the period mentioned above. As a matter of fact, the Tahsildar, Mambalam Guindy Taluk has during June September 1988 issued extract from the Town Survey Land Register in respect of the property in question in the name of A.K.Seshadri and Manjula, wife of A.K.Seshadri, as owners. Whereas the same Tahsildar, Mambalam Guindy Taluk has issued the communication, dated 08.06.1988, to the Executive Engineer, TNEB, as if the property belongs to Parthasarathi Temple. Though the petitioners have produced a copy of the notice, dated 29.11.2007, stated to be issued by the Parthasarthi Temple, during the pendency of the writ petitions, the petitioners are unable to explain the circumstances under which this notice is all of a sudden issued during 2007. The original notice is also not produced before this court. The notice does not contain the signature of any official. It does not also contain the name of the printers.
17.The learned senior counsel appearing for the contesting respondents have on the basis of the Principles laid down in the decisions reported in AIR 1957 Madras 427 (In re G.Alavandar) and 1962 (1) Cri.L.J. 824 Manipur High Court (Chingangbam Gourahari Singh Vs. Union Territory of Manipur), contended that the printed matters must show who printed it and at what place and in the absence of such particulars, there is violation of Section 3 of the Press and Registration of Books Act.
18.Further the petitioners have not impleaded the temple as one of the respondents herein nor the temple has made any attempt to get themselves impleaded herein. On the failure of the petitioners to do so and in the absence of any legally permissible evidence in the nature of title deed or other revenue records, the claim of the petitioners that the title of the individual respondents is disputable and questionable, is not acceptable herein.
19.At the risk of repetition, it is stated herein that the particulars mentioned in the encumbrances certificates would go to show the number of transactions effected in respect of the property in question and the latest among the same is the sale deeds in favour of the individual respondents and the same is sufficient enough to reject the petitioner's claim that the property belongs to temple and the individual respondents have no claim over the property and the sale deeds in their favour are bogus in nature.
20.The next point to be considered herein is want of notice and personal hearing to the petitioners before issuing G.Os.
21.The learned senior counsel for the petitioners has by relying on the observation of the Hon'ble Supreme Court and our High Court in the following judgments seriously contended that the rescission of G.O. issued without notice and without affording an opportunity of hearing to the petitioners must be quashed on the ground of violation of principles of natural justice.
(i)1975 (1) SCC 110 (The Government of Mysore and others Vs. J.V.Bhat and others)
(ii)AIR 1980 Madras Vs. 246 DB (Parthasarathy and another Vs. V.Kuppammal)
(iii)1985 (3) SCC 545 (Olga Tellis and others Vs. Bombay Municipal Corporation)
(iv)1989 (2) SCC 505 (State of U.P. Vs. Maharaja Dharmander Prasad Singh and others)
(v)1991 (2) SCC 604 (Scheduled Caste and Weaker Section Welfare Association (Reg.) and another V. State of Karnataka)
(vi)1998 (4) SCC 387 (Larsen & Torbro Ltd. Vs. State of Gujarat and others);
(vii)2004 (1) SCC 681 (Babu Prarasu Kaikadi (dead) by LRS. Vs. Babu (dead) through Lrs.)
22.The cases above referred to arises out of different proceedings, (i)acquisition proceedings of Karnataka Slum Area (Improvement and Clearance) Act, 1973; (ii) Tamil Nadu Slum Areas (Improvement and Clearance) Act 1971; (iii) U.P. Urban Planning and Development Act, 1973; (iv) Mysore Slum Areas (Improvement and Clearance) Act, 1958; (v) Bombay Tenancy and Agricultural Lands Act, 1948 and (vii) Bombay Municipal Corporation Act, 1888, provided for forcible eviction and removal of hutments and pavements of slum dwellers.
23.It is no doubt true that this Court is bound by the observation of the Hon'ble Apex Court and the Division Bench of our High Court, in the above citations, wherein the Hon'ble Apex Court and our High Court have while upholding the powers of the Government to rescind a notification by virtue of Section 21 of the General Clauses Act is pleased to hold that the same cannot be exercised to the prejudice of a class of persons and without affording opportunity of hearing to the affected persons and rescission of notification without hearing the persons prejudicially affected, thereby being in violation of the principles of natural justice, would not satisfy the condition subject to which the power to rescind is exercised.
24.Before applying the views of the Hon'ble Apex Court and our High Court to the facts of the present case, it is but necessary to first determine the issue relating to the occupation of the area by the petitioners herein.
25.This Court has in the foregoing paragraph is of the view that the petitioners have failed to prove that the petitioners have been in the occupation of the area in question, as such the question of issuance of notice to the petitioners does not arise herein. Section 2(g) and 2(i) of the Act 1971 defines occupier and person interested. The occupier includes any person for the time being is paying or is liable to pay the rent to the owner either to the land or building, owner, rent-free tenant, licensee in the occupation of the land or building and any person, who is liable to pay to the owners damages for the use and occupation of any land or building. As far as the petitioners are concerned, the petitioners have not produced any document to show that they fall under any one of the categories defined under 2(g) of the Act. The person interested defined under Section 2(i) includes any person claiming or entitled to claim an interest in the compensation payable on account of the acquisition of that land or building under the Act. Here again none of the petitioners are able to show that they are either the owners of the land or the owners of the building and is entitled to get compensation in the event of the acquisition of the land or building. On the other hand, learned counsel for the petitioners would seriously argue that the petitioners being the slum dwellers ought to have been given notice and ought to have been given personal hearing before rescission of the original 1972 notification issued under Section 3(1) of the Act. When the petitioners are not in a position to prove their occupation, the question of issuing notice and giving them an opportunity of hearing does not arise herein.
26.Even otherwise, as far as the notification denotifying the area as slum area is concerned, the same is issued subject to the conditions that the land owners shall provide alternative accommodation to the slum dwellers and they shall bear the expenses as specified by the Government towards development charges of the alternative accommodation and they shall bear the expenses for effecting and transporting the slum dwellers to the alternative accommodation and they shall not evict the slum dwellers without obtaining prior permission from the Slum Clearance Board. Out of conditions, as above referred to, the individual respondents complied with their three conditions. They have already found suitable place for providing them alternative accommodations and such suitable place is an approved lay out and further approval for putting up construction of houses is also obtained from CMDA. The individual respondents have much before filing of the writ petitions deposited about Rs.6,51,500/- towards developmental charges and for providing water supply, electricity, etc. on 22.07.2002, as such the individual respondents have already complied with the conditions of providing alternative accommodation to slum dwellers. What remains to be done is that they have to obtain permission from the Board for removing the encroachers. The learned senior counsel for the individual respondents has in the course of argument submitted that as the alternative site is provided, the petitioners can have no grievance against their eviction from the area in question and they cannot be treated as aggrieved or interested persons and the question of giving them opportunity of being heard will arise at the time of granting permission for removing the encroachers and Section 29 of the Act provides for giving opportunity to the parties of being heard and making such summary enquiry before granting permission or refusing to grant permission for eviction of the occupants and that stage is yet to be reached. This Court finds considerable force in the argument advanced on the side of the respondents.
27.In the cases cited above, the Hon'ble Apex Court is of the view that the person, who get prejudicially affected by the rescission of the notification, is entitled to the opportunity of personal hearing. Even the Constitution Bench of the Hon'ble Apex Court has in the judgment reported in 1985 (3) SCC 545 emphasized the Government's action upon its assurance regarding providing alternative site to the evicted persons. As a matter of fact, in the judgment above cited in paragraph No.51, the Commissioner was found justified in directing removal of encroachments committed by the petitioners on pavements, footpaths or accessory roads and it is observed so on the ground that both sides are given amble opportunity before the Court to put forth their contention liberally on facts as well as on law and the Supreme Court was only pleased to direct steps to be taken for alternative site for resettlement of slum dwellers.
28.Here is the case wherein the area was declared as slum area as the same was found to be a source of danger to the health, safety and convenience of the public of that area and its neighbourhood by reason of the area being low-lying, insanitary, squalid and overcrowded. Though Section 11 notice and notice for acquisition proceeding were issued at an early date, they were not proceeded with. Except issuing notification, no further action was taken on the part of the Government for improvement of the slum area by acquiring the same and requiring execution of works of improvement to be carried on in that area.
29.In all the cases cited above, there was in pursuance of Section 3 notification, Section 11 notification and steps to evict occupants under Section 29 of the Act were taken without seeking permission. As Section 11 and 29 provides for opportunity of being heard, the Apex Court and our High Court were of the view that the rescission of notification without giving notice of hearing is bad in law.
30.In Larsen and Toubro case, the land acquisition proceedings arise out of the Land Acquisition Act were sought to be withdrawn at the stage of the right of the beneficiary was involved, as such the Supreme Court is of the view that the beneficiary for whom acquisition proceedings was initiated is entitled to a notice against proposed withdrawn. In Scheduled Caste and Weaker Section Welfare Association case, there was notification issued under Sections 3 and 11 and in view of Section 11 notification, the inhabitants of the area were sought to be evicted and as they would be prejudicially affected, it is observed that the right of opportunity of being heard must be given to them. In the case reported in 1975 (1) SC 110, here again the notifications were issued under Sections 3 and under section 9 for declaring the area as a clearance area and Section 12 for acquiring certain lands and the Supreme Court was of the view that the persons affected by such clearance notification and acquisition notification are to be given personal hearing. As far as the case reported in 2004 (1) SCC 681 is concerned, the same arises out of Tenancy and Land laws and Section 29 of the Act provides for recovery of the possession by the landlord from the tenant only in accordance with the procedure prescribed therein and the Supreme Court is of the view that the protection given to the tenant in terms of the said Act must be given full effect. In the case decided by the Division Bench of Our High Court in AIR 1980 Madras 246, the Division Bench was of the view that Section 29 impose certain restriction on the owners of the land for eviction against the occupiers of the slum area only after getting permission from the requisite authority.
31.This Court has no quarrel over the principles laid down by the Hon'ble Apex Court and the Division Bench of this Court in the judgments above cited, but this Court is only of the view that as far as the present cases are concerned, G.Os. issued are to denotify the slum area subject to certain conditions and the conditions having been fulfilled by the land owners not to the prejudice of the occupiers but to the benefit of the occupiers, the petitioners cannot be permitted to raise any plea that they are entitled to get notice as aggrieved persons.
32.Thus, for the discussions held above, this Court is of the view that the petitioners are not entitled to challenge the validity of notifications impugned herein by reason of delay and laches, lack of locus standi and on facts and therefore, they are disentitled to get the reliefs sought for herein.
33.In the result, all the writ petitions stand dismissed. Consequently, connected miscellaneous petitions are also dismissed. No costs.
Index : yes / No 18.11.2014 Internet : yes / No gcg K.B.K.VASUKI, J. gcg To 1.The Secretary to Government of Tamil Nadu, Department of Housing and Urban Development, Fort St. George, Chennai 600 009. 2.The Chairman, Tamil Nadu Slum Clearance Board, Chennai 600 005. 3.The Chairman, Tamil Nadu Electricity Board, Chennai 600 002. W.P.Nos.19154, 19155 of 2004 and 3002 & 30003 of 2005 18.11.2014