Madras High Court
G.P.Rudhrashan vs The Tamil Nadu Slum Clearance Board on 23 August, 2011
Author: K.Chandru
Bench: K.Chandru
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 23.08.2011 CORAM THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.Nos.16949 to 16951, 17625,19699 of 2009, Cont.Petition No.120 of 2010 and M.P.Nos.1,1,1,1 and 1 of 2009 G.P.Rudhrashan ...Petitioner in W.P.No.16949/2009 Asmath Beevi ...Petitioner in W.P.No.16950/2009 M.Chelliah ...Petitioner in W.P.No.16951/2009 P.Balu ...Petitioner in W.P.No.17625/2009 Singaravelu ...Petitioner in W.P.No.19699/2009 1.S.Karunanidhi Thevar 2.V.Mani 3.M.D.Kumar 4.M.S.Kumar 5.M.Sivakami 6.E.K.Lakshmi 7.Meenakshi 8.P.Thirumalai Kumar 9.E.Sundar 10.E.Subaya ...Petitioners in Cont.P.No.120/2010 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 and 2 in all the WPs 3.Meenakshi ...3rd Respondent in W.P.No.16949/2009 4.S.Karunanidhi Thevar ...3rd respondent in W.P.No.16950/2009 5.E.K.Lakshmi ...3rd respondent in W.P.No.16951/2009 6.P.Thirumalaikumar ...3rd respondent in W.P.No.17625/2009 7.Mr.Ashok Dongre The Chairman, Tamil Nadu Slum Clearance Board, No.5, Kamarajar Salai, Chepuak, Chennai - 600 005. ... Respondent in Cont.P.No.120/2010 Writ Petitions are preferred under Article 226 of the Constitution of India praying for the issue of a writ of Certiorari, calling for the records of the respondents relating to the order of the 2nd respondent in proceeding Na.Ka.No.A5/918/09/Ko-2 (in all WPs) dated 10.08.2009 (in W.P.Nos.16949 to 16951, 17625 of 2009) and 24.07.2009 (in W.P.No.19699 of 2009) and quash the same. Contempt Petition filed under Section 11 of the Contempt of Courts Act to punish the respondent Tamil Nadu Slum Clearance Board for willfully disobeying the orders of this Hon'ble Court dated 04.05.2005 made in W.P.No.12732 of 2005 and for the act of contempt. For Petitioners : Mr.K.Raja in W.P.Nos.16949 to 16951/2009 and W.P.No.17625/2009 Mr.S.K.Rakhunathan in W.P.No.19699/2009 Mr.B.Nataraj in Cont.P.No.120/2010 For Respondents : Mr.Y.Bhuvanesh Kumar for R1 and R2 in all the Wps Mr.B.Natarajan for R3 in W.P.Nos.16949 to 15951 of 2009 C O M M O N O R D E R
The ten petitioners in Contempt Petition No.120/2010 and the five petitioners in W.P.Nos.16949 to 16951, 17625, 19699 of 2009 are projecting conflicting interests and the official respondents viz., Tamil Nadu Slum Clearance Board (for short TNSCB) is the root cause for the proliferation of the number of litigations between the parties before this Court.
2. When the contempt petition came up for hearing, this Court in order to resolve the disputes between the rival claimants directed the other five writ petitions to be posted. Accordingly, all the writ petitions were posted and the matters were heard together and a common order is being passed.
3. The facts leading to the litigation are as follows:-
The TNSCB took up Slum Area in old Vijayaraghavapuram under the Madras Urban Development Project. The people living in the slum area were enumerated by the District Collector and the list of beneficiaries who were entitled and eligible for getting allotment were forwarded by the District Collector to the TNSCB. A plan sketch was drawn by the TNSCB on "As is where is" basis in the area occupied by the people living under the Scheme area and sent for approval by the Chennai Metropolitan Development Authority (CMDA). The plan was also approved. According to the TNSCB, the original Survey No.210 was classified as "Low Lying Area" and as per the District Collector's eligibility list, the plots were allotted by allotment letter made during the year 1988.
4. The following table gives the details of allottee's names, plot allotted, measurement of the plots, allotment numbers and the allotment dates:-
Sl.No Allottee's Name Plot Allotted Plot Measurement Sq.Mts.
Allotment No. Allotment Date 1 G.P.Rudhrashan (W.P.No.16949/2009) 278 85.0 A1/431/88 12.09.1988 2 Asmath Beevi (W.P.No.16950/2009) 285 166.0 A1/431/88 14.03.1988 3 M.Chelliah (W.P.No.16951/2009) 279 76.0 A1/431/88 10.09.1988 4 Kanagarathinam (Subsequent Purchaser Balu - W.P.No.17625/2009) 277 80.0 A1/431/88 21.03.1988 5 Pakkirisami (Subsequent Purchaser Singaravelu -
W.P.No.19699/2009) 275 69.0 A1/431/88 21.03.1988
5. It was stated that the original allottees paid the sale consideration as fixed by TNSCB. In the case of Kanagarathinam and Pakkirisamy, they have sold the plot after getting No Objection Certificate from the TNSCB. In any event, the issue whether the subsequent purchase is valid or not is not an issue in these writ petitions. The TNSCB is empowered under G.O.Ms.804 Housing and Urban Development Department, dated 23.09.1993 to collect penalty and sale consideration amounts from such people, who were living as encroachers in the Madras Urban Development Project (MUDP) Scheme Areas. The power was also given to the TNSCB to regularise the respective encroachment. In the very same Government Order, it was stated that if there are any encroachment made in any areas, such encroachment can be regularised after getting approval from the CMDA.
6. In the meanwhile, it was stated that one Meenakshi and nine others made a representation to the TNSCB claiming that they were encroachers under the Scheme Area. Therefore, they requested the TNSCB to regularise their encroachments as per the Government Order. On the basis of a report obtained from the Survey Department of TNSCB, the Board considered their proposals and divided the area into 10 Plots viz., Plot Nos.420/1 to 420/10. The Plan Sketch prepared by the TNSCB was forwarded to the CMDA. It was claimed that CMDA approved the sketch by their Letter No.29/96. Subsequent to the Plan Sketch approved by the CMDA, plot numbers which were assigned, were allotted to the 10 persons. The following table shows the list of Plot numbers, names of allottees, extent of area, allotment order numbers and the dates of allotment:-
Sl.No. Plot No. Allottee Name Plot Extent (Sq.mts) Allotment Order No. Date 1 420/1 Mr.Karunanidhi Devar S/o.Samiyya Devar 104.0 E4/34015/95 12/95 2 420/2 Mr.V.Mani S/o.Vedachalam 110.0 E4/34016/95 12/95 3 420/3 Mr.M.T.Kumar S/o.S.Mariappan 110.0 E4/34017/95 12/95 4 420/4 Mr.M.S.Kumar S/o.S.Mariappan 109.0 E4/34018/95 12/95 5 420/5 Mr.M.Sivagami S/o.S.Mariappan 154.5 E4/34019/95 12/95 6 420/6 Tmt.E.K.Lakshmi W/o.Krishnamurthy 95.5 E4/34020/95 12/95 7 420/7 Tmt.Meenakshi W/o.Pothikachalam 101.0 E4/34021/95 12/95 8 420/8 Mr.Thirumalaikumar S/o.Pandara Thevar 101.0 E4/34022/95 12/95 9 420/9 Mr.E.Sundar S/o.Esakki Thevar 110.0 E4/34023/95 12/95 10 420/10 Mr.Subbiah S/o.Esakki Thevar 156.0 E4/34024/95 12/95 Total 1151.0 Note : Sl.Nos.1 to 10 are petitioners in C.P.No.120/2010
7. These 10 allottees had also paid the sale consideration and the penalty amounts. In the meanwhile, it was stated that some local people in the area made complaints to the TNSCB against the allotment made to these 10 persons.
8. It was further stated that the Corporation of Chennai also wanted to hand over the allotment area to be utilised as a common area. The TNSCB on considering the complaints and also the request of the Corporation of Chennai cancelled all the 10 allotments made by the Board's proceedings dated 10.01.1997. Further, charge memos were also given to the Surveyor and other concerned officials for giving a false report to the Board. Pursuant to the action taken against them, penalties were also imposed against those officers.
9. It is at this juncture, the 10 allottees (petitioners in Cont.P.No.120/2010) filed a writ petition before this Court being W.P.No.12732 of 2005, seeking for a direction for execution of the sale deed. It was claimed that they did not inform this Court about the cancellation of the allotment. It was also claimed that the said writ petition came to be allowed even at the admission stage on 04.05.2005 and without the benefit of any counter by the TNSCB. The said order came to be passed based on the statement made by the then learned counsel for the TNSCB, who did not get any proper instructions from the TNSCB.
10. In the order dated 04.05.2005 in W.P.No.12732 of 2005, this Court in paragraphs 2 and 3 observed as follows:
"2. ...Regarding the claim that the petitioners have complied with the terms/conditions of allotment, learned counsel for the Slum Clearance Board has fairly stated that all of them have fully complied with the same.
3. Taking note of the above statement and in the light of the factual details referred to in the affidavit, the respondent is directed to execute the sale deed and register the same before the Sub Registrar concerned in respect of Plot Nos.410/1 to 10, admeasuring 1151 sq.Meters in Old Vijayaraghavapuram MUDP II low lying area, comprised in S.No.210, Saligramam Village, Mambalam Guindy Taluk, Chennai District, within a period of 8 weeks from the date of receipt of a copy of this order. This writ petition is ordered accordingly. Consequently, W.P.M.P.No.13929 of 2005 is closed."
11. Aggrieved by the order passed by this Court, the TNSCB preferred a writ appeal being W.A.No.166 of 2006 and one of the third party by name Paramasivam had filed W.A.No.1336 of 2005. Both writ appeals were dismissed by an order dated 23.03.2006. In respect of the writ appeal filed by the Board, the Division Bench observed as follows:-
"There is no dispute that all the writ petitioners have complied with the conditions by paying required amount to the Slum Clearance Board and an order of allotment was also passed in their favour. Therefore, they are entitled for execution of the sale deed in their favour. However, the stand of the Board is that subsequently, the allotment was cancelled. Learned counsel appearing for the Board fairly stated that there is no record of cancellation of the allotment made in favour of the writ petitioners and the Board is unable to produce the order directing cancellation of the allotment."
12. Not satisfied with the order passed by the Division Bench, the TNSCB preferred a SLP before the Supreme Court being SLP (Civil) No.8480 of 2006. The said SLP came to be dismissed by the Supreme Court even at the admission stage on 12.05.2006. Therefore, the right of the contempt petitioners to get the sale deed in respect of the plots allotted to them became final in the light of these subsequent developments.
13. Aggrieved by the non-implementation of the order passed by this Court in W.P.No.12732 of 2005 dated 04.05.2005, 10 allottees had filed Contempt Petition No.287 of 2006. The said contempt petition was disposed of by this Court by an order dated 19.01.2007, wherein, this Court observed as follows:-
"The learned counsel appearing for the respondent Slum Clearance Board has produced copy of the proceedings of the Managing Director of Tamil Nadu Slum Clearance Board dated 19.01.2007, which shows that all steps have been taken for execution of sale deed. In view of the information in the above said proceedings and the statement of the learned counsel appearing for the Slum Clearance Board that on clearance of the encroachment in the property in question the order of this Court dated 04.05.2005 and 01.07.2005 in W.P.No.12732 of 2005 will be implemented fully, I am of the view that no further adjudication is required in this contempt petition for this moment. Accordingly, this contempt petition is closed. It is made clear that, if the respondent takes longer time, the petitioners are free to approach this Court at any time."
14. In the meanwhile, the TNSCB, in view of the threat of being punished under the contempt proceedings took a survey of the Plot Nos.420/1 to 420/10 for taking steps to execute the sale deed. It was claimed by them that during the survey, it was found that the 6 plots were encroached.
15. The Survey taken by the TNSCB contained the following encroachments:-
Sl.No. Plot No. Allottee's Name Plot Extent (Sq.mts) Without Encroachment (Sq.Mts) With Encroachment (Sq.Mts) 1 420/1 Mr.Karunanidhi Devar S/o.Samiyya Devar 104.0
-
104.0 2 420/6 Tmt.E.K.Lakshmi W/o.Krishnamurthy 95.5 68.0 27.5 3 420/7 Tmt.Meenakshi W/o.Pothikachalam 101.0 72.0 29.0 4 420/8 Mr.Thirumalaikumar S/o.Pandara Thevar 101.0 73.0 28.0 5 420/9 Mr.E.Sundar S/o.Esakki Thevar 110.0 80.0 30.0 6 420/10 Mr.Subbiah S/o.Esakki Thevar 156.0 143.0 13.0 Note : Petitioners in the Contempt Petition 120/2010
16. It was also claimed by the TNSCB that on 10.01.2007 in respect of the following Plot Numbers
i) Plot No.420/6 - Tmt.E.K.Lakshmi
ii) Plot No.420/7 - Tmt.Meenakshi
iii) Plot No.420/8 - Mr.Thirumalaikumar
iv) Plot No.420/9 - Mr.E.Sunar sale deeds were executed in respect of the plots which remained un-encroached.
17. Likewise, in respect of Plot Nos.420/2 (V.Mani), 420/3 (M.T.Kumar), 420/4, (M.S.Kumar), 420/5 (M.Sivagami), sales deeds have been executed in respect of the plots in its entirety as there was no encroachment in their lands. It is only in the case of Karunanidhi Devar (allottee in Plot No.420/1), the entire extent of plot viz., to the extent of 104.0 Sq.mts was encroached completely. Therefore, it was claimed that the original plot Nos.420/1 to 420/10 which covered an area of 1151 Sq.Mts, sale deeds have been executed to an extent of 919.5 sq.mts and Sale deed could not executed only in respect of 231.5 Sq.mts of land which had been encroached by the 5 writ petitioners.
18. The contempt petitioner, (most aggrieved of them is Mr.Karunanidhi Devar) filed a Sub Application No.175/2009 to re-open the Contempt Petition No.287 of 2006 under the premises that this Court gave them liberty to approach this Court at any time. In that sub application, notice was ordered to the Managing Director to appear before this court. Accordingly, he appeared on 08.07.2009 and his appearance was dispensed with and in order to comply with the earlier order, the matter was adjourned with a direction to file a compliance report. On 15.09.2009, the TNSCB informed this Court that they will consider the alternative proposal given by the encroachers to allot the area which was earmarked for the pathway to compensate the loss of their original allotment due to encroachment. On the basis of their intention to give their proposal, this Court by an order dated 06.08.2009 directed them to consider the request for alternative proposal. It was stated that the Board has sought for approval by the CMDA and that as soon as the approval of the CMDA is obtained, contempt petitioners' grievance can be re-dressed.
19. In the meanwhile, on 24.07.2009, the TNSCB gave notice to the 5 writ petitioners stating that they have illegally encroached the lands in the various survey numbers and they were directed to give vacant possession within seven days, failing which, the Board will take appropriate action in terms of Tamil Nadu Slum Clearance Board (Management and Control of Properties) Act, 1871. The TNSCB found that the following persons were responsible for the encroachment.
20. The names of those persons, plots allotted to them, plot measurements and the excess area encroached by them and the plot in which such encroachment were found are as follows:-
Sl.No. Allottee /Petitioner's Name Plot Allotted Plot Measurement Sq.Mts.
Encroached Excess area Sq.Mts Plot Encroached 1 G.P.Rudhrashan W.P.No.16949/2009) 278 85.0 29.0 Some portion in 420/7 420/8 2 Asmath Beevi W.P.No.16950/2009) 285 166.0 18.0 420/1 3 M.Chelliah W.P.No.16951/2009) 279 76.0 27.5 420/6 4 Kanagarathinam (Subsequent Purchaser Balu - W.P.No.17625/2009) 277 80.0 30.0 Some portion in 420/9 & 420/8 5 Pakkirisami (Subsequent Purchaser Singaravelu -
W.P.No.19699/2009) 275 69.0 13.0 420/10
21. Immediately upon the receipt of the said encroachment notice, the petitioners filed the W.P.Nos.16949, 16950, 16951, 17625 and 19699 of 2009, challenging the eviction notice given to them. In the first three writ petitions, while ordering notice of motion, this Court granted an interim stay on 03.09.2009. In the 4th writ petition, notice was ordered and interim stay was granted on 31.08.2009. In the 5th writ petition, interim stay was granted while ordering notice on 24.09.2009.
22. The contention raised by those 5 writ petitioners was that the order passed in W.P.No.12732 of 2005 was not binding on them as they were not made parties in that writ petition. TNSCB never framed any scheme to allot vacant land in Survey No.210, which was a pond and in respect of Plot No.420/7, no pathway is available and hence, it could not have been allotted. The alleged encroached area referred to in their eviction notice was done without any survey.
23. It was also stated that there was no objection for allotting the remaining area, which was not under occupation by any one. Since the allotment of the plot to the respective allottees, who are contempt petitioners was illegal, TNSCB had initiated disciplinary action against the officials who are responsible for such illegal allotment. In all the five writ petitions, the respective allottees i.e., the contempt petitioners had been made as third respondent, the Board and its official being respondents 1 and 2.
24. The same petitioners also filed Sub.A.No.394 of 2009 for impleading themselves in Sub.Application No.175/2009 in Cont.P.No.287 of 2006 in case the contempt petition was to be revived. However, this Court by an order dated 03.12.2009 held that once the contempt petition was closed, the same cannot be re-opened and if they were aggrieved, they may have to file a separate petition. In view of the dismissal of the Sub Application 175/2009, the writ petitioners impleading application was also dismissed.
25. It was thereafter, the present contempt petitioners filed Contempt Petition No.120 of 2010. When that matter came up on 04.02.2010, this Court directed notice to be given to the TNSCB. Subsequently, on 08.04.2011, statutory notice was given to the respondents who also appeared before this Court and his presence was dispensed with. Subsequently, the contempt petition was tagged along with other writ petitions filed by persons who were sought to be evicted.
26. The TNSCB filed a counter affidavit in all the writ petitions dated 05.11.2009. They have also filed a common typed set containing documents relevant to these cases. They have also filed a counter affidavit in the Contempt Petition 120/2010 dated 08.04.2010.
27. In the meanwhile, it was brought to the notice of this court that pursuant to the application made by the TNSCB for granting approval to convert the pathway meant for general public use into house site plots, CMDA called for certain details from the Board. However, CMDA refused planning clearance stating that the common land (lane) cannot be converted into residential plots in the old Vijayaraghavapuram MUDP Scheme. In view of the said rejection by the CMDA, the TNSCB informed the contempt petitioners that their request cannot be complied with for allotment of the area shown as lane. When these facts were also intimated to the petitioners by a communication dated 12.11.2009, it was stated that the sale deeds for the balance portion were prepared to be given to them.
28. Aggrieved against the order dated 07.10.2009, passed by the CMDA, the contempt petitioners preferred an appeal to the State Government seeking for planning clearance for conversion of lane existing between Plot Nos.420/1 to 420/10 into residential plots in the Old Vijayaraghavapuram MUDP Scheme. The said appeal was examined by the State Government and by a communication dated 16.12.2020, the CMDA informed the contempt petitioners, which is as follows:-
2. The appeal has been examined and observed as follows:-
(i) The layout was approved by Chennai Metropolitan Development Authority in 'As is where is' condition of Old Vijayaraghavapuram area (MUDP-II) and Plot Nos.410/1 to 410/10 by providing 5.00m Lane for access.
ii) During the inspection of the site by the officials of Chennai Metropolitan Development Authority, it was observed as follows:-
a) The site is abutting 24m wide road namely P.v.Rajamannar Road.
b) 8 Nos. of A/C Sheet houses, 2 Nos. of huts are in existence in the site. But the same have not been occupied.
c) No demarcation had been made for passage and plots.
iii) Pucca houses and Structures are found on the Eastern side of the layout by encroachment. Hence the approved layout got altered.
iv) "As is where is" Layout of Sites and Services scheme, MUDP-II, earlier approved by Chennai Metropolitan Development Authority shall not be altered or modified.
v) Any alteration made to the approved layout could be examined only if it satisfies the prevailing norms of Development control Rules/Development Regulations.
vi) The petitioners (10 nos) (ie,Thiru.S.Karunanidhi and 9 others) have not furnished any valid allotment order copy.
29. The contempt petitioners sent a further reply and made an alternative plea to the State Government in paragraphs 4 and 6, which is as follows:-
"4. In this connection we further represent, that TNSCB has to give 231.5 Sq.m as the compensation land towards the encroachment. If the TNSCB allot the pathway to be used by 10 allottees measuring to 225 Sq.m as compensation for the encroachment land, we are ready to forego the shortfall of 6.5 Sq.m as represented in our letter cited 3rd. Then we would construct pucca houses.
6. We the 10 allottees, pray to permit us to construct the tenement type building in the allotted area of 10 allottees. The allotment area of each allottee would be undivided shares of each allottee if tenement type building is approved. We request that the tenement type building in the revised layout may kindly be approved, and we the ten allottees are ready to give an undertaking stating that the allotted area of each allottee would be undivided share of each allottee. Otherwise as an alternative to the above we request one meter private pathway on the sides as shown in the sketch enclosed may kindly be approved."
30. However, the State Government (which is not a party in these writ petitions) by G.O.(2D) 105 Housing and Urban Development Department, dated 07.07.2011 rejected the request of the contempt petitioners for planning clearance. The State Government also consulted the recommendation of the Appeal committee. The recommendation of the Appeal Committee as found in Paragraph 6 of the Government Order reads as follows:-
"6. The appeal of Thiru S.Karunanidhi & 9 others was placed before the Appeal Committee. The Appeal Committee has decided and recommended as follows:-
i) "It is an appeal requesting for conversion of lane into residential plot.
ii) Chennai Metropolitan Development Authority has approved the layout for Sites and Services Scheme (MUDP-II) for Tamil Nadu Slum Clearance Board.
iii) The lane under reference is a public road. Public access should not be changed.
iv)There is no provision for conversion of lane into residential plot.
v)Conversion of common lane into residential plot would lead to non-availability of access to the plots.
vi)Site meant for slum dwellers and should not be amalgamated or merged for commercial or residential development by the real estate developers.
vii) In view of the above reasons, the appeal preferred by Thiru S.Karunanidhi and 9 others against the order of Member Secretary, Chennai Metropolitan Development Authority refusing the planning clearance for the proposed conversion of lane (existing in between the plots 420/1 to 420/10) into residential plots located in Old Vijayaraghavapuram, MUDP Scheme 'as is where is' layout, Saligramam village under section 79 of the Tamil Nadu Town and Country Planning Act, 1971 may be rejected".
31. In the light of these factual developments and rival claims, the following questions arise for consideration:
i)Whether the respondent TNSCB is liable to be punished for the alleged disobedience of the order passed by this Court in W.P.No.12732 of 2005 dated 04.05.2005 ? ii) Whether the land encroached by the writ petitioners in W.P.Nos.16949 to 16951, 17625, 19699 of 2009 are liable to be recovered so as to allot the encroached land to the contempt petitioners?
iii)Whether the claim of the contempt petitioners for the alternative proposal can be considered?
iv)In the alternative what could be the best equitable and just solution to the grievance projected by the contempt petitioners.
32. It must be noted that the root cause for the entire litigation is due to the fault of the then counsel for TNSCB who made a statement before this Court that the contempt petitioners have complied with the terms and conditions of the allotments without the benefit of any counter affidavit and without producing any records before this Court. The fact that the plots originally allotted to them were cancelled and disciplinary action was initiated against the TNSCB officials who were responsible for sending a false report was also not brought to the notice of this Court.
33. It was rather unfortunate that a single action of the then counsel led to series of litigations by the rival claimants. The other reason was that contrary to the original allotment of the area, the writ petitioners have encroached in excess of their original allotment and their action of encroaching and making pucca construction in that area also cannot be condoned. The ground reality is projected from the statement made by the TNSCB and also the photographs of the present area occupied by the petitioners makes it clear that the writ petitioners have put up pucca construction and are occupying those buildings. The photographs furnished by the writ petitioners in their typed set clearly shows that there is pucca RCC construction with ground plus one storey. In the land allotted to the contempt petitioners, there is only a temporary construction with asbestos roofing occupying a very small area. The major encroachment is by Asmath Beevi, writ petitioner in W.P.No.16950/2009 who had occupied plot No.420/1 which disabled the plot being allotted to the first contempt petitioner Karunanidhi Devar, who is also the third respondent in that writ petition. The contempt petitioners request for allotment of the pathway (lane) as per the layout plan which made for public use was correctly refused by the CMDA and their statutory appeal to the State Government for planning clearance was also refused.
34. Therefore, the question of allotment of any alternative area adjacent to their allotment is not feasible for compliance and this Court in a collateral proceeding cannot set aside the orders of the CMDA and the State Government who are not parties before this court. Even otherwise in a planned development of Metropolitan city, the planning sanction given by the CMDA are statutory in character and no person can alter the said plan and no such direction can never be issued by this Court on that issue.
35. Further, in the counter affidavit filed in the main writ petitions, in paragraphs 14 and 15, TNSCB had expressed its substantial compliance of the order passed by this Court and it was stated by them that Plot Nos.420/1 to 420/10 comprising of 1151 Sq.mts, the sale deed executed so far covers an extent of 919.5 sq.mts leaving out the balance of 231.5 sq.mts due to encroachment and even to remove the encroachment, they have taken appropriate steps which has also been forestalled by the pendency of the writ petitions. In the counter affidavit, they have also set out the steps taken by them to get CMDA clearance.
36. In the light of the stand taken by the TNSCB, they are not liable to be punished in the contempt especially in the context of the substantial compliance by them and even for the minor violation, they have given justified reasons.
37. The Supreme Court vide its judgment in Mohd. Iqbal Khanday v. Abdul Majid Rather reported in (1994) 4 SCC 34 has held that impossibility of performance can be a legitimate defence in the contempt petition. The following passages found in paragraphs 14 to 16 of the said judgment may be usefully reproduced below:
"14.The law of contempt is based on sound public policy by punishing any conduct which shakes the public confidence in the administration of justice. The order dated 21-9-1992 while directing notice also required the appellant to accord promotion to the respondent as Associate Professor. It requires to be noticed here that is the main prayer in the writ petition itself. In such circumstances, the correctness of such an interim order is open to serious doubt. For a moment, it is not to be understood that the court has no power to pass such an order but the question is whether while granting such interim reliefs the discretion of the court has been correctly exercised? If the writ petition is ultimately dismissed, the respondent would have gained an undue advantage of getting a promotion undeservedly. But we are not on the merits of the interim order.
15.Right or wrong, the order has been passed. Normally speaking, it cannot be gainsaid that the order ought to have been obeyed but it appears that there are insuperable difficulties in implementing the order. First is that the post of Associate Professor, according to the respondent, is a selection post. Secondly, the mere seniority, even if that is assured in favour of the respondent, would not be enough to gain such a promotion. Thirdly, the specific order of the Government was to exclude the period of deputation on foreign assignment from reckoning the duration of the teaching experience of the respondent. Therefore, the respondent did not possess the requisite qualification. Fourthly, such necessary qualifications seem to be mandatory under the rules. That being the position to accord such a promotion, will be violative of the rules. Fifthly, the promotion could be granted only by the Public Service Commission and not by the appellant.
16.From the above, it appears that the appellant was expressing his genuine difficulties with regard to the implementation of the order dated 21-9-1992. In such a situation the insistence of the courts on implementation may not square with realities of the situation and the practicability of implementation of the courts direction. In our considered view, hooking a party to contempt proceedings and enforcing obedience to such orders hardly lends credence to judicial process and authority; more so, in the peculiar facts and circumstances of the case. The court must always be zealous in preserving its authority and dignity but at the same time it will be inadvisable to require compliance of an order impossible of compliance at the instance of the person proceeding against for contempt. Practically, what the court by means of the contempt proceedings seeks is an execution which cannot meet with our approval."
38. In the light of the same, the contempt petition stands dismissed.
39. In respect of the challenge to the eviction notice for removing the encroachment made by the 5 writ petitioners, it must be noted that the action of the petitioners cannot be condoned, but at the same time, if the encroached areas, which are covered by complete construction is allowed to be demolished, then substantial loss would be caused to the petitioners without deriving any benefit to the contempt petitioners. The contempt petitioners themselves in their letter to the State Government dated 27.12.2010 (found in pages 40 and 41) of the typed set filed in Contempt Petition No.120/2010, they have asked for compensation for the encroachment by way of allotting the pathways to the extent of 225 sq.mts and with readiness to forego 6.5 sq.mts. As already their claim for conversion of the pathway was rejected by the CMDA as well as by the State Government, the question of compensating them by alternative land will not arise. The only way to compensate them is to recover the market value of the encroached land by the writ petitioners together with interest on the said market value from the date of encroachment and after recovering the same to be paid to the contempt petitioners in so far as the demarcated area of original allotment given to them. The petitioners have no other option except to pay the market value of the encroached land together with interest on the said value to be determined by an expert of the TNSCB otherwise since they have not made out any case to sustain the encroachment, their buildings are liable to be demolished.
40. Therefore, in the interest of justice and to resolve the dispute once in for all, this Court hereby directs the TNSCB to appoint a Committee of Engineers to determine the market value of the encroached portion covered by the eviction notice issued to by them impugned in the writ petitions 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 five petitioners M/s. G.P.Rudhrashan, Asmath Beevi, M.Chelliah, P.Balu and Singaravelu in proportionate to the extent of encroachment made by them, the said amount shall be paid to such of those contempt petitioners whose original allotment was encroached in proportion of that allotment. This exercise of ascertaining the amount of the encroached land by the petitioners shall be carried out within a period of eight weeks from the date of the order. Notice should be given to the writ petitioners to pay the said amount within 12 weeks thereafter. After recovering the same, the amounts should be disbursed to the contempt petitioners in relation to the proportion of the land lost by them in their original allotments. In case the writ petitioners failed to honour their commitment or failed to pay the amounts, 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.
41. With these directions, the writ petitions are disposed of. However, there will be no order as to costs. Consequently, connected miscellaneous petitions are closed.
23.08.2011 Index : Yes Internet : Yes svki To
1.The Chairman, The Tamil Nadu Slum Clearance Board, 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.
K.CHANDRU,J.
svki ORDER IN W.P.Nos.16949 to 16951, 17625,19699 of 2009, Cont.Petition No.120 of 2010 23.08.2011