Madras High Court
Vijaya vs State Of Tamil Nadu on 15 November, 2017
Author: S.Vaidyanathan
Bench: S.Vaidyanathan
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 15.11.2017 CORAM: THE HONOURABLE MR. JUSTICE S.VAIDYANATHAN W.P.No.29811 of 2014 1. Vijaya 2. P.Bhaskar 3. Saradha 4. Devaki 5. Sekar 6. Geetha 7. Revathy 8. Rajam 9. Vimala 10. Savithri 11. Bobby 12. Dilip Kumar 13. Manimaran 14. Kasi 15. Kumar 16. Shanthi 17. Narayaniammal 18. Lalitha 19. Malliga 20. Gautham 21. Selvi 22. Malliga 23. Govindammal 24. Nagammal 25. Kausalya 26. Charulatha 27. Manju 28. Udayakumar 29. Ponni 30. Manohari 31. Srinivasan 32. Gnanaprakasam 33. Shanthi 34. Vanilla 35. Lokeswari 36. Kala 37. Bhaskar 38. Prabhakaran 39. Amudha 40. Malliga 41. Muniammal 42. Chitra 43. Aalis 44. Vijaya 45. Manjula 46. Dharani 47. Anandhan 48. Shanthi 49. Govindammal 50. Dhanam 51. Amutha 52. Devika 53. Ponniammal 54. Jamuna 55. Bhuvaneswari 56. Nagavalli 57. Kavitha 58. Prema 59. Devi 60. Govindammal ... Petitioners vs. 1. State of Tamil Nadu, rep. by its Secretary, Municipal Administration and Water Supply Department, Secretariat, Chennai 600 009. 2. The Commissioner, Corporation of Chennai, Ripon Buildings, Chennai 600 003. 3. The Managing Director, Tamil Nadu Slum Clearance Board, No.5, Kamarajar Salai, Chennai 600 005. 4. The District Collector, Chennai District, M.Singaravelar Maaligai, Second Line Beach, Chennai 600 001. 5. The Inspector of Police, G-5, Police Station, Otteri, Chennai - 12. ... Respondents Writ Petition filed under Article 226 of the Constitution of India praying for the issuance of a writ of mandamus, forbearing the respondents and their agents from forcibly evicting the petitioners from Konnur High Road Slum, Otteri, Chennai - 12 in Corporation Division No.74 in Zone No.6 in Purasaiwalkam, which is a declared slum under Section 3(1) of Tamil Nadu Slum Areas (Improvement and Clearance Act, 1971) and consequently directing the 3rd respondent to consider the petitioners' representation dated 11.11.2014, in accordance with law to provide in-situ accommodation to the petitioners in the same place. For Petitioners : Mr.S.Sathia Chandran For Respondents 1, 2 4 & 5 : Mr.Vijay Narayan, Advocate General assisted by Mr.R.Arunmozhi (R2) and Mr.S.Diwakar, Special Government Pleader and Mr.C.Vigneswaran & Mr.Gautham Venkatesh For 3rd Respondent : Mr.B.Kesavan * * * * * O R D E R
Petitioners, who are mostly unorganized workers and who belong to socially and economically backward sections of the society, have come up with this Writ Petition, seeking to forbear the respondents from forcibly evicting them from Konnur High Road Slum, Otteri, Chennai - 12 in Corporation Division No.74 in Zone No.6 in Purasaiwalkam and for a consequential direction to the 3rd respondent to consider their representation dated 11.11.2014, in accordance with law, to provide accommodation to them in the same place.
2. According to the petitioners, there are around 150 families residing at Konnur High Road Slum, which is a declared slum under Section 3 of the Tamil Nadu Slum Areas (Improvement and Clearance) Act, 1971 (hereinafter referred to as 'the Act') and they have been residing in the said slum for generations and all of them have been issued Ration Cards, Voter Identity Cards and are provided with electricity service connection. Most of them are working in the vicinity as domestic workers, construction workers, drivers, rickshaw pullers, small vendors, tailors, etc. for their livelihood.
3. It is the further case of the petitioners that the 2nd respondent/Corporation came to their slum, took photographs and obtained their thumb impressions with the help of Police. Thereafter, an organization working for the welfare of slum dwellers sent a representation to the respondents on 30.10.2014 and 11.11.2014 on behalf of all the persons residing in the slum. However, there was no reply from the respondents. In the meanwhile, the 3rd respondent/Tamil Nadu Slum Clearance Board, vide letter dated 04.09.2014 under RTI stated that they will not evict people from declared slums. While so, on 10.11.2014, the subordinates of 2nd and 3rd respondents along with Police personnel came to their slum and attempted to evict them forcibly, without any prior notice. Hence, petitioners have come up with the present Writ Petition.
4. In the counter affidavit filed by the 2nd respondent/Corporation, it is stated that the Public Works Department has been entrusted with the work of improvement of main canals by providing concrete retaining walls on both sides. The Corporation of Chennai has been assigned with the task of improvement of feeder canals by desilting/widening them and providing concrete retaining walls under the Jawarharlal Nehru National Urban Renewal Mission (JNNURM) Scheme, designed as a comprehensive flood mitigation scheme at a huge cost to the exchequer. At the time of carrying out investigation for the design of the scheme, most of the waterways, including drains and canals, were found to be severely affected by encroachments by people belonging to low income groups. Apart from hindering the flow of waterways, the families encroaching on the edges of such water bodies are perpetually vulnerable to flooding and various kinds of diseases due to the insanitary conditions they live in. Hence, the Government decided to relocate the encroachers to other places and therefore, necessary enumeration has been taken up during 2011. Simultaneously, the Tamil Nadu Slum Clearance Board has taken steps to provide alternative accommodation to the families living in these encroachments by constructing tenements under the JNNURM Scheme.
5. It is further stated by the 2nd respondent/Corporation that on investigation, it was found that Ekangipuram canal is the only waterway to discharge rainwater from Villivakkam, ICF, Ayanavaram Railway Colony and also south side of the railway track from Villivakkam to Perambur and drain it into Otteri Nallah Main canal. Improvement work on Ekangipuram canal was taken up under JNNURM scheme by Corporation of Chennai at an estimated cost of Rs.14.49 crores and the work commenced on 24.12.2010 and till date, the Corporation is not able to complete the work because of the encroachments on the banks of Ekangipuram canal at most of the places. In Konnur High Road, the canal is connected to a closed twin drain of approximately 6m width, which discharges into Otteri Nallah Main Canal. Encroachments are found right on top of this closed drain in Konnur High Road and the drain is silted up and in a dilapidation condition. Blockage or narrowing of the drain at the disposal point will necessarily lead to heavy flooding in catchment areas of the canal. According to the 2nd respondent, it is necessary to clean up the blockage and reconstruct the drain and thereafter maintain it in good condition. Hence, it is unavoidable to remove the encroachments and relocate the encroachers to another place. Due to the said encroachments, the Corporation of Chennai is unable to complete remaining 50% of the work. Also, sewage is freely let out into the canal by the encroaching hut dwellers, which creates other problems like siltation and mosquito menace.
6. According to the 2nd respondent/Corporation, they were ready with the allotment orders for 177 encroachers on Ekangipuram canal and 75 families out of 177, received the allotment orders and on 10.11.2014 and 11.11.2014, they were vacated and resettled in the TNSCB tenements at Ezhil Nagar, Okkium, Thoraipakkam. It is further stated that due to heavy rain on 12.11.2014, remaining encroachers did not receive allotment orders, instead, they have come up with this Writ Petition.
7. The 3rd respondent has filed a counter affidavit and has stated that the Act does not safeguard people encroaching an area, which is water course or objectionable land from eviction. Notifying an area as slum does not provide a ban for eviction. In fact, a notified slum, if cannot be developed in-site should be cleared by providing alternative, safe, hygienic, protected, well-developed accommodation to the dwellers. According to the 3rd respondent, the petitioners are living on the canal bank, which is a water body and hence, it should be free from encroachments.
8. It is further stated that the Tamil Nadu Slum Clearance Board in 1970 did an exhaustive study of slum areas and slum dwellers in the city. All the slum areas were not declared as slum clearance areas under Section 11 of the Act and only the areas which were fit for in-situ development were brought in the purview of slum clearance areas and declared accordingly and that the slum area in question is on canal bank and it is not fit for in-situ development and hence, was not declared as slum clearance area. According to the 3rd respondent, though the place where eviction is being carried out by the Corporation of Chennai is notified as slum, the land belongs to Chennai Corporation.
9. Learned counsel for the petitioners submitted that the place where the petitioners are residing is declared as a Slum in terms of Section 3 of the Act. According to him, there should be a notification under Section 3 of the Act, declaring a particular area as slum and as per Section 11 of the Act, there must be a declaration that the said area comes under Slum Clearance and unless and until both the ingredients are satisfied, the petitioners cannot be evicted. It is his contention that the place where the petitioners are residing has been declared as a slum area under Section 3 of the Act, but, no such declaration under Section 11 has been issued and in that event, any action sought to be taken by the respondents to evict the petitioners, is illegal. That apart, the petitioners have not constructed any building over the Storm Water Drain, as alleged by the respondents and though it is true that the respondents have provided alternative accommodation to the petitioners, the said place is far off and in any event, the action of the respondents is illegal.
10. It is the further contention of the learned counsel for the petitioners that as no statutory notice is issued by the respondents and that there is violation of principles of natural justice, no eviction can be made in the slum area, unless it is notified as a slum clearance area and the respondents have no power, authority or jurisdiction to evict them except following the due process of law. According to the learned counsel, petitioners are residing in the area in question from 1952 and the Notification published in the Tamil Nadu Government Gazette clearly shows the existence of Konnur High Road Slum since 1952 and the total area of the slum is 0.91 ares. He further submitted that the total tenements in the slum are 126 and the total number of people are 205 and that 60 persons have approached this Court by filing the present Writ Petition.
11. It is also submitted by the learned counsel for the petitioners that the petitioners are in the edge of the notified area, but at no point of time, they are residing above the Storm Water Drain and the contention that the petitioners are usurping the place and they are encroachers, is not correct. Learned counsel, referring to Section 17 of the Act, contended that the Government has got powers to acquire the land for the purpose of rehabilitating slum dwellers and trying to vacate the persons without taking steps to improve the habitation, is arbitrary and high-handed.
12. To substantiate his case, learned counsel for the petitioners has relied on the following:
(i) K.Chandru vs. State of Tamil Nadu and others, (1985) 3 SCC 536 "7. Alternate accommodation is always provided before the slums are removed. The hutments near the Loyola College consisted of two categories, one of which was Pushpa Nagar, which was a notified slum. That slum was vacated for the purpose of construction of a multi-storeyed building at a cost of Rs. 47.79 Lakhs for the sole purpose of Housing the slum dwellers of Pushpa Nagar. The other category, which formed a small minority, was from Choolaimedu who encroached upon public properties after finding that the Pushpa Nagar hutment dwellers were being provided alternative accommodation. These persons had their own huts or residence elsewhere.
The petitioners have filed rejoinders to the counter- affidavits but, except for denying the statements in the counter-affidavits, the rejoinders do not contain anything to which reference need be made.
9. We are satisfied, on a careful consideration of the statements contained in the counter-affidavit filed on behalf of the respondents, that the Government of Tamil Nadu has adopted a benevolent and sympathetic policy in regard to the slum dwellers. Steps are being taken for the purpose of improving the slums and wherever they cannot be improved, alternate accommodation is provided to the slum dwellers, before they are evicted. In view of this position, we do not consider it necessary to issue any writ or direction to the Government of Tamil Nadu. We will only express our confidence that the Government will continue to evince the same dynamic interest in the welfare of the pavement dwellers and slum dwellers. We may remind the Government, if at all, of what the Collector of Madras, Shri Badrinath, has stated in his Report : "The motto of slum clearance is : God revealeth in the smile of the poor." Let the poor smile for a while."
(ii) an unreported decision dated 08.09.2014 passed by the First Bench of this Court in W.P.No.25176 of 2009 and Review Application Nos.8 and 9 of 2010 in the case of C.Selvaraj vs. State of Tamil Nadu and others "3.It is the case of the petitioners in the writ petition that those orders were passed in the absence of full disclosure by the Slum Development Authority. In this behalf, a reference has been made to a Notification dated 29.12.1971 under Section 3(1) of the Tamil Nadu Slum Areas (Improvement and Clearance) Act, 1971. The Schedule to the Notification however states that the area notified is T.S.No.10 measuring 17 grounds and 582 sq. ft. It is thus the case of the petitioners that insofar as the inhabitants of this area are concerned, they cannot simply be categorized as encroachers on land and are entitled to rehabilitation as per the provisions of the said Act.
4.The affidavits filed by the Slum Development Authority as well as the orders earlier passed by this Court show that the rehabilitation measure has possibly gone much beyond the area specified and alternative accommodations are being made available to persons who have been issued allotment letters, but apparently are refusing to move to Okkiyakduraipakkam. The nature of facilities there and the rehabilitation being carried out has been dealt with by us in W.P.No.6039 of 2011 where we have upheld the measure.
5.Learned Counsel for the petitioners states that so far as the people who may be inhabiting the area beyond 17 grounds and 582 sq. ft. of T.S.No.10 are concerned, he holds no brief because he is claiming rights only in respect of that area which forms part of the Notification.
6.The stand of the learned Counsel for respondent No.4 in the writ petition is that in the context of the said Act, a judgment has been delivered by the Hon'ble Supreme Court in K.CHANDRU Vs. STATE OF TAMIL NADU AND OTHERS AND CONNECTED MATTER (AIR 1986 SC 204). This was in the context of Section 11 of that Act qua slum dwellers and pavement dwellers and it was observed that the Supreme Court was satisfied that the Government was taking steps for improving slums and for providing alternative accommodations and thus no writ or direction was liable to be issued.
7.In our view, all that is required to be observed qua inhabitants of the aforesaid land is that the area having been declared as slum, the provisions of the said Act would apply and thus any measure of clearance/rehabilitation would have to be in accordance with the provisions of the Act."
(iii) yet another unreported decision of the First Bench of this Court, dated 25.08.2014 made in W.P.No.6039 of 2011 in the case of A.Narayanan vs. The Chief Secretary to Government of Tamil Nadu and others "9.It has been further averred that people resettled were not having houses of their own and were living in thatched roof/huts under unhygienic conditions, frequently affected by fire and flood. The very purpose of schemes is to provide care and shelter for people with basic amenities. Insofar as in-situ development is concerned, it has been averred that acquiring land within the city limits is a herculean task as there is no vacant land available within the city limits for such schemes. The schemes have been made in Corporation limits or near the areas which would be soon coming 9 within the Corporation limits. A categorical averment has been made in para 11 There is no alternate land available nearer to the existing slums. Hence, it is inevitable to resettle the people to provide permanent, pucca shelter to the poor and to make slum free city. 10.The aforesaid material shows that the Government is alive to the need of rehabilitation of slum dwellers through long term schemes. The averment shows that their aim is to have a slum free city with rehabilitation by 2023. We would expect the Government to make all endeavour towards this objective and ensure proper maintenance of the rehabilitated areas with adequate facilities, if they do not already exist. We do feel that the continuous maintenance of the areas is an important part as otherwise there is deterioration in the construction. Education and employment facilities in nearby areas are also necessary as otherwise it is noticed in different parts of the country that the people hand over/sell the tenements to come back to original locations if they are unable to get bread and butter near the rehabilitated areas. If there are certain thought processes within the Government enriched by the past experience of rehabilitation as has been pointed out by the learned Counsel for the petitioner, they would certainly form material for ongoing future rehabilitation."
13. Mr.Vijay Narayan, learned Advocate General, assisted by Mr.R.Arunmozhi, learned counsel and Mr.S.Diwakar, learned Special Government Pleader appearing for respondents 1, 4 and 5, submitted that the banks of the canal are not part of the 3(1) notification and are declared as slum. According to the Advocate General, water bodies shall not be encroached and in the present case on hand, there is a Storm Water Drain, connecting Otteri Nullah and Koovam Link Canal. When there is every right to public interest, none muchless the petitioners can block water flow/Storm water flow.
14. Learned Advocate General further submitted that the Government is prepared to accommodate the petitioners in the alternative site and that a place has been identified and tokens have been issued for alternative accommodation. Some of the petitioners have accepted the alternative site and vacated the place while 25 of petitioners, who are occupying tenements near the canal, have constructed huts and refused to receive the allotment order and nearly about 35 people were not found during the enumeration. Some of the petitioners herein are the second and third members of the family and allotment orders have already been issued to the family head as per the Ration Card and that for 20th and 32nd petitioners, allotment has been rejected. He produced the details of the petitioners herein as regards allotment of alternative accommodation to them and the same are extracted below:
S.No S.No in W.P No 29811 /2014 Name of the Petitioner Remarks 1 6th Petitioner S.Geetha 2 15th Petitioner D.Kumar 3 19th Petitioner Malliga 4 23rd Petitioner Govindhammal 5 31st Petitioner Srinivasan 6 37th Petitioner D.Basker 7 40th Petitioner Malliga, S. 8 44th Petitioner vijaya 9 47thPetitioner Anandhan 10 22nd Petitioner Malliga 11 60th Petitioner Govindhammal.K 12 10th Petitioner Savithri 13 11th Petitioner Bobby 14 12th Petitioner Dikrose 15 13th Petitioner Manimaran 16 14th Petitioner Kasi 17 17th Petitioner Pathminiammal 18 18th Petitioner Lalitha 19 25th Petitioner V.Kowsalya 20 26th Petitioner Charulatha 21 27th Petitioner Manju 22 28th Petitioner S.Vijayakumar 23 35th Petitioner Lokeswari 24 36thPetitioner Kala 25 38th Petitioner Prabakaran 26 42nd Petitioner Chithra 27 43rd Petitioner Alis 28 58th Petitioner Prema These petitioners are the 2nd and 3rd member of the family. Allotment orders already issued to the family Head as per ration card 29 20th Petitioner Gowtham 30 32nd Petitioner Gnanapraksam TNSCB rejected the allotment 31 1st Petitioner Vijaya 32 2nd Petitioner P.Baskaran 33 3rd Petitioner Saradha 34 4th Petitioner Devaki 35 5th Petitioner Sekar 36 7th Petitioner Revathi 37 8th Petitioner Rajam 38 9th Petitioner Vimala 39 16th Petitioner Shanthi 40 21st Petitioner Selvi.K 41 24th Petitioner Nagammal 42 29th Petitioner Pooni 43 30th Petitioner Manogari 44 33rd Petitioner Shanthi W/o Selvam 45 34th Petitioner Vennila 46 39th Petitioner Amudha 47 41st Petitioner Muniammal 48 45th Petitioner Manjula 49 46th Petitioner Dharani 50 48th Petitioner Shanthi 51 49th Petitioner Govindhammal W/o Suresh Kumar 52 50th Petitioner Dhanam 53 51st Petitioner Amudha 54 52nd Petitioner Devika 55 53rd Petitioner Ponniammal 56 54th Petitioner Jamuna 57 55th Petitioner Buvaneshwari 58 56th Petitioner Nagavalli 59 57th Petitioner Kavitha 60 59th Petitioner Devi Residing on the Canal and the Canal Margin
15. According to the Advocate General, in terms of the provisions of the Act, the authorities have to clear and develop the slum area to rehabilitate. Even though the petitioners have accepted that the place in question belongs to the Corporation, the averment of the petitioners appears that the place in question is a private land and that there should be acquisition. When the alternative site is ready and when public interest is of paramount importance, petitioners are not entitled to the relief sought for. He contended that when the petitioners are residing in a place which is not notified as a slum area, they are encroachers and that they have constructed huts above the storm water drain, which is nothing but violation and they have to be evicted.
16. Learned Advocate General, in support of his stand, drew the attention of this Court to the following:
(i) a Supreme Court decision in the case of D.Malligarjuna Rao vs. Member Secretary, Chennai Metropolitan Development Authority, Chennai, (AIR 2001 Mad 324) "2. The 2nd respondent has filed a counter, alleging as follows:
It is the usual practice to insist upon the applicants to fence the OSR area which has easy access from the public road, if the location is approved by the Chennai Metropolitan Development Authority. The petitioner's property comprised in R.S. No. 2932/12 is of an extent of 18.10 grounds on the eastern side. The said land was later formed as Secretariat Colony. The lake bund is called as Baracah Road. In and around the Baracah Road, there are number of hutments and the slums comes under notified slum by the Tamil Nadu Slum Clearance Board. The Madras Secretariat Co-operative Building Society filed W.P. No. 12243/94, praying for removal of the huts that obstructed the free flow of traffic on the Baracah Road and access to V Street, which was completely closed by the huts. The Court directed the respondents therein to implement the scheme as envisaged by the Chennai Metropolitan Development Authority viz., to maintain the Baracah Road with 30 ft. width and to make access to V Street of Secretariat Colony from Baracah Road. The 2nd and 4th respondent identified 38 hutments and they were removed from Baracah Road and slum dwellers were rehabilitated at Oteri Sathiavani Muthu Nagar. By the said implementation of the order made in W.P. No. 12243/84, the petitioner's property has also got access of 16' width, to Baracah Road. After getting the passage of 16' width, the petitioner has also raised the land by dumping debris. Now, the Baracah Road has also been widened more than 30' in width. The 2nd respondent has sent a letter to the 4th respondent to evict the remaining hutments. During inspection, it was found that there was no access to the petitioner's property, if the OSR area is fenced and handed over to the respondent. Hence, the entire file was returned by the respondent to the 1st respondent on 27-9-99 for an alternative arrangement as per Development Control Rules. As per D.C.R. without proper access from the public Road, the OSR area cannot be taken over by the Corporation.
4. It is not in dispute that unauthorised huts were put up by the slum dwellers on Baracah Road, reducing the width of the Road and preventing free flow of traffic. Consequent upon the order passed by this Court in W.P. No. 12243 of 1984 filed by Madras Co-operative Housing Society, certain number of huts were identified and removed. The case of the petitioner is that there are encroachments on road margin just in front of his property, preventing free access of the petitioner from his property to Baracah Road, and these encroachments are all on road margin and in spite of the petitioner bringing it to the notice of the Corporation, the Corporation have not chosen to take any steps to remove the same. Learned counsel for the Corporation would contend that the Corporation has already provided to the Slum Clearance Board sufficient lands and it is for the Slum Clearance Board viz., the 4th respondent to take suitable steps and that the Corporation has nothing to do with the request of the petitioner. On the other hand, the counsel appearing for the 4th respondent would submit that the 4th respondent has no role to play in this matter and that the alleged encroachments viz., the huts are located not on the street nor they form part of any Slum declared under the Act and that the encroachments are only in road margins which fall within the control of the Corporation and therefore, it is the baby of the Corporation and the Slum Clearance Board has nothing to do with the same. Whose baby it is really. For the Corporation and the Slum Clearance Board viz., respondents 2 and 4 would pass on the responsibility to the other.
9. Such construction or formation of huts on public road posses threat to the public health. The area would become unhygienic and a source of danger to public health. For the occupants living in the huts put up on the public road and road margins necessarily do their washing, bathing and even attend calls of nature only in public streets. Thus, the atmosphere will become polluted. The sullage and waste water from these huts flow into streets, stagnate into cess-pools where mosquitoes breed in large numbers. Thus, the entire area would become filthy and unhygienic. Not only that, free flow of traffic is impeded. The parts of the road and road margins are blocked by the huts. Necessarily, the pedestrians have to tread on the roads, thereby exposing themselves to the risk of being run over by the vehicles. It is the right of a citizen to lead a healthy life. The State has to see that the citizens lead a healthy life and not a life endangered by such unhygienic atmosphere. If steps are not taken to remove encroachments on public road, then, the State will be failing in its duties and obligations. When there is a failure to discharge the statutory duties, then the citizens has to necessarily resort to the constitutional provisions under Article 226.
12. As regards the other prayer, I do not find that there is any real controversy. The Corporation accepts that the OSR area cannot be fenced because of the encroachment by the sulm dwellers. Had the Corporation taken its job seriously necessarily it could have remove the encroachments long back. Having been indirectly responsible for the encroachement in a public street, they cannot now come down and say that the entire frontage of the property has been occupied by the slum dwellers and, therefore, access to OSR area is blocked and hence it cannot be fenced. It is only on the ground that the OSR area cannot be fenced because of the encroachment, the planning permission has not been granted and once the encroachment is removed by the Corporation, there appears to be no other objection to the grant of planning permission.
13. In the result, the Writ Petition is allowed and a direction is issued to remove all the encroachments on the road margin immediately abutting the petitioner's property situate on Baracah Road. The 2nd respondent in co-ordination with the 1st respondent and the Commissioner of Police, Chennai shall take immediate steps to remove all the encroachments now on the eastern side of the petitioner's property facing Baracah Road viz., in the Road Margin, and clear the area within four weeks of this order. Since it is also stated that suitable steps have already been taken and land has been handed over to the Slum Clearance Board, the 4th respondent shall see to it that the evicted slum dwellers are rehabilitated in Sathiavanimuthu Nagar. There will be a consequent direction to respondents 1 to 3 to further process the petitioner's application for planning permission on and after removal of the encroachments. Consequently, connected WMP will stand closed."
(ii) a First Bench decision of this Court in the case of L.Krishnan vs. State of Tamil Nadu, (2005 (4) CTC 1) "9. In this connection, reference may be made to Article 48-A of the Constitution which states:
"Protection and improvement of environment and safeguarding of forests and wild life - The State shall endeavour to protect and improve the environment and to safeguard the forests and wild life of the country.
12. Apart from the above, we may also refer to Article 51-A(g) of the Constitution which makes it a fundamental duty of every citizen "to protect and improve the natural environment including forests, lakes, rivers and wild life." This duty can be enforced by the Court, vide Animal and Environment Legal Defence Fund v. Union of India, 1997 (3) SCC 549.
14. Therefore, we direct the respondents 1 to 5 to take necessary legal steps to remove the alleged encroachments made by the respondents 6 to 12 as well as the petitioner over Odai Poramboke in Iyan Punji Survey No.100/1 at No.247, Tatchur Village, Kallakurichi Taluk, Villupuram District measuring 5 acres and 70 cents. Inasmuch as this writ petition has come before us by way of a public interest litigation, we take this opportunity to direct the State Government to identify all such natural water resources in different parts of the State and wherever illegal encroachments are found, initiate appropriate steps in accordance with the relevant provisions of law for restoring such natural water storage resources which have been classified as such in the revenue records to its original position so that the suffering of the people of the State due to water shortage is ameliorated."
(iii) an unreported decision dated 22.07.2010 by a Division Bench of this Court in W.P.Nos.17915 of 1993 & 25776 of 2006 in the case of Consumer Action Group vs. Project Director and Member Secretary and others "2(b) The Madras Metropolitan Area is watered by Arniar, Kusasthaliyar, Cooum and Adyar rivers. There are number of small tanks called eris in Arniar, Kusasthaliyar, Cooum and Adyar basins. These eris are reservoirs of water contained behind earthen bunds or embankments. The bund surrounds the water on three sides and the fourth side is open for the catchment from which water flows down to collect in the eri. These Eris are fed by channels diverted from rivers and they are linked in a chain within themselves and to the river and act as micro flood regulators exchanging their surplus at times of monsoon or rain. The collected water percolates into the ground enriching the ground water in the area as well as recharging the shallow acquifers below. These eri storages should be maintained unencroached and continued as small water bodies within the metropolitan area to enrich the ground water for local use, to serve small ayacuts, recharge the acquifers and offer many more intangible benefits for the society.
14. Though originally there was no provision in our constitution to protect the environment and ecology, by way of amendment, Article 48-A was inserted in part IV, whereby and whereunder a duty was cast on the State to endeavour to protect and improve the environment and to safeguard the forests and wildlife of the Country. Article 51-A was also inserted in part IV-A of the Constitution, which contains fundamental duties of every citizen. Article 51A(g) in categorical terms declares that it shall be the duty of every citizen of India to protect and improve the natural environment including forests, lakes, rivers and wild life and to have compassion for living creatures.
15. India was a party to the Stockholm Convention organized by the United Nations in the year 1972. The declaration in the said conference that natural resources of the earth including air, water, land, flora and fauna and especially representative samples of natural ecosystems must be safeguarded for the benefit of present and future generations through careful planning or management, as appropriate, is binding on India.
26. The City is progressing day by day and we are witnessing developmental activities on a large scale. Therefore the requirement of water in the City is also increasing day by day. The City should also be free from flooding and other natural calamities. It is also no doubt true that eri storages should be maintained without any kind of encroachments and this would enable the Chennai city to receive water in abundance.
30. The authorities constituted for the purpose of removal of encroachments and preservation of water bodies cannot run away from their primary responsibility on flimsy reasons, as observed by the Supreme Court in MUNICIPAL COUNCIL v. SHRI VARDICHAN (1980(4) SCC 162) :
"......The Pressure of the judicial process, expensive and dilatory, is neither necessary nor desirable if responsible bodies are responsive to duties."
32. It is appropriate to quote the following observation of the Supreme Court in SRINIVASA ENTERPRISES v. UNION OF INDIA (1980(4) SCC 507):
"Judicial validation of a social legislation only keeps the path clear for enforcement. Spraying legislative socio-moral pesticides cannot serve any purpose unless the target area is relentlessly hit."
17. It is the further contention of the learned Advocate General that there is an obligation to clear and demolish buildings, once it is declared as a slum area under Section 11 of the Act. Drawing the attention of this Court to the provisions of Section 17 of the Act, he contended that the purpose of acquiring the land is only to redevelop the slum area. But, in this case, the provisions of Section 17 may not be applicable, as the land does not belong to a private party, whereas, it belongs to the Corporation. Hence, he prayed for dismissal of the Writ Petition.
18. Heard the learned counsel on either side and perused the material documents available on record.
19. The issue for consideration in this case is whether the slum area in question is a notified and declared slum and whether the petitioners are liable to be evicted.
20. Both the parties have produced Sketch. From the Sketch produced, it is clear that the petitioners are residing adjacent to the Storm Water Drain and that the Storm Water Drain does not come under the notified area. Unless and until that portion is notified as a slum, Section 11 will not apply. Even assuming for the sake of argument, the place in question is a slum, admittedly, even according to the petitioner, there is a Storm Water Drain and at no point of time, anyone muchless the petitioner is empowered to construct any building or hut for the purpose of tenements over the Storm Water Drain.
21. For the sake of convenience, Sections 3, 11, 12, 14 and 17 of the the Tamil Nadu Slum Areas (Improvement and Clearance) Act, 1971 are extracted below:
4. Declaration of slum areas: (1) Where the Government are satisfied that -
(a) any area is or may be a source of danger to the health, safety or convenience of the public of that area or of its neighbourhood, by reason of the area being low-lying, insanitary, squalid, overcrowded or otherwise; or
(b) the buildings in any area, used or intended to be used for human habitation are -
(i) in any respect, unfit for human habitation; or
(ii) by reason of dilapidation, over-crowding, faulty arrangement and design of such buildings, narrowness or faulty arrangement of streets, lack of ventilation, light of sanitation facilities, or any combination of these factors, detrimental to safety, health or morals, they may be notification, declare such area to be slum area.
(2) In determining whether a building is unfit for human habitation, for the purposes of this Act, regard shall be had to its condition in respect of the following matters, that is to say -
(i) repair
(ii) stability
(iii) freedom from damp,
(iv) natural light and air
(v) water-supply
(vi) drainage and santitary conveniences,
(vii) facilities for storage, preparation and cooking of food and for the disposal of water waster;
and the building shall be deemed to be unfit as aforesaid, if and only if it is so defective in one or more of the said matters that it is not reasonably suitable for occupation in that condition.
11. Power to declare any slum area to be a slum clearance area. - (1) Where the Government, on a report from the Board or the prescribed authority, or the local authority concerned or the State Housing Board or an officer authorized by the Government for this purpose are satisfied as respects any slum area that the most satisfactory method of dealing with the conditions in the area is the clearance of such area and the demolition of all the buildings in the area, they may, by notification, declare the area to be slum clearance area, that is to say, an area to be cleared of all buildings in accordance with the provisions of this Act: Provided that before issuing such notification the Government shall call upon the owners of the land and buildings in such slum area to show cause why such declaration should not be made and after considering the cause, if any, shown by such owners, the Government may pass such orders as they may deem fit. (2) Any part of the slum area or any building in the slum area which is not fit for human habitation or dangerous or injurious to safety, health or morals may be excluded from the notification under sub section (1) if the Government consider it necessary. (3) The notification under sub-section (1) shall specify each of the buildings to be demolished and the area to be cleared.
12. Obligation to clear area and demolish buildings. - When a slum area has been declared to be a slum clearance area under sub -section (1) of section 11, the owners of the lands and the buildings in that area shall clear the area and demolish the buildings before the expiration of such period as may be prescribed.
14. Owner may re-develop.- (1) Subject to the pr ovisions of this Act, where a notification under sub-section (1) of section 11 has been issued, the owner of the land to which the notification applies may re -develop the land in accordance with plans approved by the prescribed authority and subject to such restrictions and conditions (including a condition with regard to the time within which the re-development shall be completed), if any, as that authority may think fit to impose: Provided that an owner who is aggrieved by a restriction or condition so imposed on the user of his land or by a subsequent refusal of the prescribed authority to cancel or modify any such restriction or condition may, within such time as may be prescribed, appeal to the Government and the Government shall make such order in the matter as they think proper and their decision shall be final. (2) No person shall commence or cause to be commenced any work in contravention of a plan approved or a restriction or condition imposed under sub-section (1).
17. Power to acquire land. - (1) Where the Government are satisfied that, for the purpose of executing any work of improvement in relation to any slum area or any building in such area or for the purpose of re -developing any slum clearance area, or for the purpose of rehabilitating slum dwellers, it is necessary to acquire any land within, adjoining or surrounded by any such area or any other land not lying in such area, they may acquire the land by published in the Tamil Nadu Government Gazette, a notice to the effect that they have decided to acquire the land in pursuance of this section. (2) Be fore publishing a notice under sub-section (1), the Collector, or any officer, authorized by the Government in this behalf shall call upon the owner or any other person, who, in the opinion of the Collector or the officer so authorized, may be interested in such land, to show cause why it should not be acquired. The Collector or the officer shall, after considering the cause, if any, shown by the owner or other person interested in the land, make a report to the Government containing his recommendations on the causes so shown, for the decision of the Government. After considering such report, the Government may pass such orders as they deem fit."
22. Learned counsel for the petitioners drew the attention of this Court to the Preamble of the Tamil Nadu Slum Areas (Improvement and Clearance) Act, 1971, which reads as under:
"(Act No.XI of 1971) An Act to provide for the improvement and clearance of slums in the State of Tamil Nadu. WHEREAS, the number of slums in certain areas in the State of Tamil Nadu is on the increase and the slums are likely to become a source of danger to public health and sanitation of the said area. AND WHEREAS under the existing law, it has not been possible effectively to arrest the growth of slums, to eliminate congestion and to provide for certain basic needs such as streets, water-supply and drainage in slums and to clear slums which are unfit for human habitation. AND WHEREAS to obviate this difficulty, it is expedient to provide for the removal of un-hygienic and insanitary conditions prevailing in slums, for better accommodation and improved living conditions for slum dwellers, for the promotion of public health generally and for the acquisition of land for the purpose of improving or developing slum areas, re-developing slum clearance areas and rehabilitating slum dwellers:
AND WHEREAS it is Directive principle of State Policy embodied in the constitution that the State should regard the improvement of public health as among its primary duties."
23. Law has been enacted to effectively arrest the growth of slums to eliminate congestion and to provide certain facilities, such as streets, water supply and drainage in the slums and to clear slums, which are not fit for human habitation. It also clearly states that in terms of directive principles of the State Policy empowered under the Constitution, the State should give due regard to the importance of public policy among its primary duties. The entire enactment and the functioning of the Legislature has to be taken into account as a whole.
24. In this case, admittedly, a Notification has been issued under Section 3 of the Act, but, there is no declaration under Section 11. Declaration is not required for a place where huts are located. As could be seen from the photographs, the tenements of the petitioners are located on the pavement, i.e. upon the Storm Water Drain and it has got be definitely removed. Even a few yards of encroachment cannot be spared and the place has to be cleared for the purpose of storm water drain.
25. Petitioners admit to the existence of storm water drain in the slum. It is the paramount duty of every citizen to ensure that the area meant for public use is not encroached. Therefore, there cannot be any tenement above the storm water drain. The purpose of the enactment as stated supra is for the improvement and clearance of slums.
26. Only in a notified slum, where private properties are located, provisions under Section 17 will be permitted, as there can be acquisition of land. In the present case on hand, the property belongs to the respondent/Corporation and the question of acquisition does not arise. Even borrowing the words provided under Section 17 of the Act, it is clear that re-habilitation of slum dwellers is mandatory.
27. When this Court posed a question to the learned Advocate General as to what steps will be taken if this Court is going to accept the contention of the respondents, he stated that the land available may be used for extension of Storm Water Drain or for any other public purpose and certainly, it is not going to be used for dwelling accommodation for Officers or Government Offices.
28. By conducting thorough investigation and detailed enumeration, the respondent/Corporation has stated that of all waterways under the control of Corporation of Chennai, nearly 12 of them are affected by encroachments. One such example is Ekangipuram canal running to 1900 metres length, which is severely encroached by huts and other temporary structures on both sides. It is very unfortunate to note that Government officials have allowed such encroachments. Removal of encroachments from water bodies or constructions made over and above river banks, ponds, bunds, etc have got to be done, immediately tracing the old layout that prevailed prior to 1950. Tamil Nadu Slum Areas (Improvement and Clearance Act), 1971 paves way for illegal encroachments and illegal constructions and several retired officials including the Secretary, Housing and Urban Development Department, who has now been transferred, never used to pass considered orders. Further, Tahsildars are hand in glove in manipulation of records, paving way for encroachments.
29. In the case on hand, though the respondents have provided alternative accommodation to the petitioners herein, some of them have accepted alternative accommodation and some of them, whose family heads have already accepted alternative sites, demand separate alternative accommodation, which, in view of this Court, is not correct. Though the details with regard to the 20th and 32nd petitioners are not available, this Court makes it clear that if they are aggrieved, it is open for them to challenge. But, this will not preclude the respondents/Government in evicting the petitioners residing in the place in question, by providing them alternative sites, if eligible.
30. In view of the above, this Court makes it clear that people who are residing in Konnur High Road Slum, Otteri, Chennai, have to be evicted forthwith. The authorities, who are entrusted with the responsibility of removal of encroachments, cannot evade their primary responsibility on flimsy grounds.
31. In fine, this Writ Petition is disposed of with the following directions:
(i) Respondents shall hand over the token/key to eligible petitioners within five days from the date of receipt of a copy of this order;
(ii) Within five days from the receipt of token/key, the eligible petitioners shall vacate the premises in question;
(iii) Other petitioners, who are not eligible for alternative sites are directed to vacate on their own within a period of one month;
(iv) Petitioners, who refuse to receive the allotment order will not be shown any indulgence and they can be removed within ten days time as stipulated supra;
(v) It is made clear that if any rejection order is passed by the respondents to any of the petitioners herein, they can challenge the same. However, this will not give them any right to continue to live in the said place. Even if they challenge and succeed, they will be entitled to any alternative site and they cannot be allowed to continue to live in the present place, which is the subject matter of the Writ Petition;
(vi) Whenever the respondent/Tamil Nadu Slum Clearance Board allots tenements to anyone, details of persons who are residing in the Slum, i.e. their photographs along with their allotment order shall be displayed in the residence. The officials can be authorised to conduct surprise inspections and take photographs/videograph of the persons who are residing in the tenements;
(vii) The petitioners, who are allotted alternative accommodation shall not rent out such premises to third parties. Only allottees and their family are entitled to reside there. In case, if the allottees are found renting or leasing out the tenements to third persons, they shall be immediately evicted and the Slum Clearance Board shall allot such tenements to other allottees;
(viii) Every year in the month of May, the allottees shall inform the Housing Board/Slum Clearance Board about the details of the residents and the relationship with the allottees, failing which, action can be initiated to evict the allottees residing in the tenements. It is open to the authorities to verify the relationship of the residents with the allottees. If the statement given by the allottee is found to be false, the allotment shall stand automatically cancelled.
No costs. Consequently, connected M.P.No.1 of 2014 is closed.
15.11.2017 Index : Yes Internet : Yes Note to Registry:
Issue copy of this order on or before 28.11.2017 (aeb) To:
1. The Secretary, State of Tamil Nadu, Municipal Administration and Water Supply Department, Secretariat, Chennai 600 009.
2. The Commissioner, Corporation of Chennai, Ripon Buildings, Chennai 600 003.
3. The Managing Director, Tamil Nadu Slum Clearance Board, No.5, Kamarajar Salai, Chennai 600 005.
4. The District Collector, Chennai District, M.Singaravelar Maaligai, Second Line Beach, Chennai 600 001.
5. The Inspector of Police, G-5, Police Station, Otteri, Chennai - 12.
S.VAIDYANATHAN,J.
(aeb) Order in W.P.No.29811 of 2014 Dated: 15.11.2017