Madras High Court
A. Durairaj vs The Chairman, Tamil Nadu Housing Board, ... on 11 October, 2001
Equivalent citations: (2001)3MLJ704
ORDER B. Subhashan Reddy, C.J.
1. This writ appeal is directed against the order of the learned single Judge arising out of the Tamil Nadu State Housing Board Act, 1961, hereinafter referred to as the 'Act'.
2. The unsuccessful writ petitioner had challenged the order of eviction issued by the respondent - Tamil Nadu State Housing Board, hereinafter referred to as the 'Board".
3. Notice dated 29.3.2001 was sought to be served on the petitioner/appellant, but as it could not be served, the same was affixed on the outer door of the premises. The second notice dated 7.6.2001 was issued to the petitioner seeking his eviction from the property in question and the receipt thereof is not disputed. As there was no response to the notice, the petitioner was evicted on 19.6.2001. That is recorded and that is also not disputed and it is so held by the learned single Judge.
4. Mr. D. Ashok Kumar, learned counsel for the appellant, submits that the learned single Judge has erred in holding that the unauthorised possession alleged in the instant case is not one provided by Section 84 of the Act. He draws our attention to Sub-Clause (b) of Sub-Section (1) of Section 84 of the Act and submits that this was not taken note of by the learned single Judge. For proper appreciation of the provisions of Section 84 of the Act with Explanation thereof, we have to extract the entire Section with the Explanation added thereto:
"84. Power to evict certain persons from Board premises:- (1) If the competent authority is satisfied
(a) that the person authorised to occupy any Board premises has-
(i) not paid rent lawfully due from him in respect of such premises for a period of more than two months; or
(ii) Sub-let, without the permission of the Board, the whole or any part of such premises, or
(iii) otherwise acted in contravention of any of the term, express or implied, under which he is authorised to occupy such premises; or
(b) that any person is in unauthorised occupation of any Board premises, the competent authority may, notwithstanding anything contained in any law for the time being in force, by notice served (i) by registered post or (ii) by affixing a copy of it on the outer door or some other conspicuous part of such premises, or (iii) in such other manner as may be prescribed, order that the person authorised to occupy as well as any other person, who may be in occupation of the whole or any part of the premises shall vacate them within one month of the date of the service of the notice.
(2) Before an order under Sub-section (1) is made against any person, the competent authority shall inform the person by notice in writing and served in the manner provided for service of notice under Sub-Section (1), of the grounds on which the proposed order is to be made and give him a reasonable opportunity of tendering an explanation and producing evidence, if any, and to show cause why such order should not be made within a period to be specified in such notice.
(3) The competent authority may, on application, grant extension of the period specified in such notice on such terms as to payment of recovery of the amount claimed in the notice as he deems fit.
(4) Any written statement put in by such person and documents produced in pursuance of such notice shall be filed with the records of the case and such persons shall be entitled to appear in the proceeding either in person or by Pleader.
(5) If any person refuses or fails to comply with an order made under Sub-Section (1), the competent authority may evict that person from, and take possession of, the premises and may, for that purpose, use such force as may be necessary.
(6) If a person, who has been ordered to vacate any premises under Sub-clause (i) or (iii) of clause (a) of Sub-Section (1) within one month of the date of service of the notice or such longer time as the competent authority may allow, pays to the Board the rent in arrears or carries out or otherwise complies with the terms contravened by him to the satisfaction of the competent authority, as the case may be, the competent authority shall, in lieu of evicting such persons under Sub-section (5), cancel its order made under Sub-Section (1) and thereupon such person shall hold the premises on the same terms on which he held them immediately before such notice was served on him.
Explanation:- For the purposes of this Section and Section 85, the expression 'unauthorised occupation' in relation to any person authorised to occupy any Board premises, includes the continuance in occupation by him or by any person claiming through or under him of the premises after the authority under which he was allowed to occupy the premises has been duly determined."
5. The eviction under Sub-Section (1) of Section 84 of the Act is in two limbs. One limb deals with authorised occupation and another with unauthorised occupation. Eviction of authorised occupants is dealt with by Sub-clauses (i), (ii) and (iii) to clause (a) to Sub-Section (1) of Section 84 of the Act. The said provisions are already extracted above and it is clear from reading of the same that authorised occupants can be evicted for non-payment of rent, unauthorised sub-letting and acting in any manner violating the terms of the deed of authorisation, be it lease or licence.
6. In so far as the unauthorised occupation is concerned, it is dealt with by clause (b) to Sub-Section (1) of Section 84 of the Act. Such unauthorised occupant, who is liable to be evicted, can be a person without any lawful right to remain in possession, be it without any title or remaining in possession even after the expiry of the notice of eviction to authorised person. For the reason that such class of authorised occupant remaining in possession even after the expiry of the service of notice of eviction is not clearly enumerated in Sub-clause (iii) to clause (a) of Sub-section (1) of Section 84, Explanation has been added at the end of Sub-Section (6) of Section 84 of the Act, making it clear that 'unauthorised occupation' includes a person, whose authorisation to remain in possession has expired but is continuing in occupation in spite of the lapse of such authorisation. The Explanation has been added for the purpose of clarity and takes in, not only the authorised occupant devoid of title but also the person who is continuing in possession beyond the period of authorisation.
7. Learned Standing Counsel for the Board also brought to our notice the judgment dated 1.7.1997 rendered by a Division Bench of this Court in W.A. No. 100 of 1994. The facts of the said case vary from the facts of the instant case. In the said case decided by the Division Bench, the occupant was claiming as a dependant and legatee of the original lessee and it was held that such kind of occupants do not come within the ambit of Section 84 of the Act. In the said case, it was never claimed by the occupant that he was in unauthorised occupation but he was claiming to be an authorised occupant as an extension of the right of the original lessee. In that view of the matter, there is a clear distinction in the facts of that case and to that of the instant case.
8. The Tamil Nadu State Housing Board Act, 1961 is a self-contained Act. The Board is a body corporate and is entitled to hold the property, deal with it and also dispose of as it thinks fit and proper in consonance with the provisions of the Act and the Rules made thereunder. The Act enables the Board to evict unauthorised occupants as also authorized occupants turning unauthorized. For that purpose, it defines as to who is the 'authorised occupant' and who is the 'unauthorised occupant' and Explanation is added only for clarity. The definition of 'unauthorised occupant', which is sought to be explained by the Explanation is an inclusive one and takes in not only the unauthorised occupant devoid of title but such occupant, who was hitherto authorised but is continuing to remain in possession of the property even after the expiry of the date set in the notice terminating the lease/licence and seeking eviction.
9. The Board is an authority under Article 12 of the Indian Constitution and is obliged to discharge the Constitutional guarantee envisaged under Article 300-A of the Constitution of evicting the appellant in accordance with the law. The law which is provided to evict the appellant is stated as above and as audi alteram partem rule has been duly observed by the respondents but not availed of by the latter, the appellant was liable to be evicted from the property of the Board and in fact, he has already been evicted and as such, we do not see any valid grievance so as to interfere with the order of the learned single Judge.
10. In view of these reasons, even though different than the one assigned by the learned single Judge, we dismiss this writ appeal in the admission stage. Consequently, C.M.P. No. 14233 of 2001 is dismissed.