Madras High Court
K.Easwari vs The Estate Officer on 19 March, 2018
Author: M.Venugopal
Bench: M.Venugopal
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 19.3.2018 CORAM The HON'BLE MR.JUSTICE M.VENUGOPAL AND The HON'BLE MR.JUSTICE S.VAIDYANATHAN Writ Petition No.33509 of 2017 & WMP.No.37014 of 2017
1.K.Easwari
2.S.K.Gokul ...Petitioners Vs
1.The Estate Officer, National Textile Corporation (TN & P) Limited, NTC House, 355, Somasundaram Mills Road, Coimbatore-641009.
2.The NTC Limited, rep.by Murugan Mills, NTC House, No.35, Somasundaram Mills Road, Coimbatore-641009.
3.The NTC Limited, the Chairman and Managing Director, Scope Complex, Core IV No.7, Lodhi Road, New Delhi. ...Respondents PETITION under Article 226 of The Constitution of India praying for the issuance of a Writ of Certiorarified Mandamus to call for the records of the 2nd Respondent under reference No.NTC/ESTATE/2017-11/05818 dated 25.11.2017 and direct the 2nd Respondent to receive the Market value of the land measuring 170.5 sq.ft in Old S.F.No.381, T.S.No.211 in Ward No.12, NTC Officers Colony Coimbatore or in the alternative to take an equal portion on the rear portion of my property in S.F.Nos. 387/1 and 388/2, T.S.Nos. 213, 215/4 and 219 (Part) in Sanganoor Village, Coimbatore adjacent to their property.
For Petitioners : Mr.S.Mukunth For Respondents : Mr.C.V.Vijayakumar Order of the Court was made by M.VENUGOPAL,J Heard the Learned Counsel for the Petitioners and the Learned Counsel for the Respondents.
2. The property involved in this writ petition measures an extent of 170.5 sq.ft of house building said to have been encroached by the first petitioner's husband - Kalimuthu Gounder into the land belonging to the second respondent herein. The whole extent of the property is in old S.F.No. 381, T.S.No.211 in Ward No.12, NTC Officers Colony, Coimbatore.
3. It comes to be known that the First Respondent/Estate Officer of NTC Limited had initiated proceedings for eviction against the First Petitioner's husband - one Kalimuthu Gounder under the Public Premises (Eviction of Unauthorized Occupants) Act, 1971 (hereinafter called the Act) to evict him from the said property. As against the eviction order, the First Petitioner's husband filed CMA. No.168 of 1994 on the file of the Principal Subordinate Judge, Coimbatore and it was dismissed by an order dated 16.11.2001 confirming the eviction order of the First Respondent dated 07.11.1994.
4. Aggrieved by the order dated 16.11.2001, the First Petitioner's husband filed W.P.No.2449 of 2002 on the file of this Court and ultimately, this Court passed an order on 29.10.2010 dismissing the said writ petition while granting liberty to the First Petitioner's husband to make a representation to the Second Respondent within a period of six weeks from the date of copy of the order. In regard to such representation, this Court directed the Second Respondent to consider the same within a period of six weeks therefrom. By the time the said writ petition came to be dismissed on 29.10.2010, the First Petitioner's husband was not alive, as he met with an accident on 23.7.2009 and died even before the disposal of the said writ petition. Even though the Petitioners herein were not brought on record formally, an order came to be passed in the said writ petition on 29.10.2010.
5. The stand of the Petitioners is that the First Petitioner made a representation before the Second Respondent on 24.1.2011 requesting to accept the market value to sell away the land encroached. The said representation was received by the Second Respondent on 28.1.2011 and it was forwarded to the Third Respondent for the reason that they had become a sick company and hence, they had forwarded the representation to the Third Respondent for a decision to be arrived at. No reply was received from the Second Respondent for over a period of six years, although the order in the said writ petition mandated that the representation of the First Petitioner should be disposed of within a period of six weeks.
6. In fact, on 15.11.2016, the First Petitioner was informed by the Second Respondent that the Third Respondent had not consented to the First Petitioner's request and only directed her to vacate the encroached portion. In fact, the Petitioners also did not have the benefit of knowing the reasons in regard to the refusal made by the Third Respondent to accede to their request. Again on 17.12.2016, the First Petitioner sent another representation explaining the Second Respondent that if she removes the encroached portion, which included the portion put up on her land, as directed, her building would collapse and gave a counter offer of a similar extent by carving out a similar portion on the rear side of her property, which she promised to convey to the Respondents in lieu of the place the First Petitioner's husband encroached.
7. The Second Respondent, through their reply dated 25.11.2017, rejected the First Petitioner's request for the sale of the encroached portion and directed her to vacate the portion encroached within six weeks. They also threatened demotion of the building, if the Petitioners do not evict within the time stipulated. Hence, the Petitioners have filed the present writ petition seeking to call for the records of the Second Respondent and direct the Second Respondent to receive the market value of the land measuring 170.5 sq.ft in Old S.F.No.381, T.S.No.211 in Ward No.12, NTC Officers Colony Coimbatore or in the alternative to take an equal portion on the rear portion of my property in S.F.Nos. 387/1 and 388/2, T.S.Nos. 213, 215/4 and 219 (Part) in Sanganoor Village, Coimbatore adjacent to their property.
8. The Respondents filed a counter affidavit. The Respondents, in their counter, had taken a technical stand that the First Respondent/Estate Officer of the NTC Limited had commenced proceedings under the Act in the year 1994 against the First Petitioner's husband and father of the Second Petitioner - late Kalimuthu Gounder for eviction from the lands of the Coimbatore Murugan Mills encroached by him by putting up construction to the extent of 170.5 sq.ft in old S.F.No.381, T.S.Nos.213, 215/4 and 219 (Part) in Sanganoor Village, Coimbatore.
9. At this stage, the Learned Counsel for the Respondents brings to the notice of this Court that the husband of the First Petitioner - late Kalimuthu Gounder filed CMA.No.168 of 1994 on the file of the Principal Subordinate Court, Coimbatore challenging the initiation of the proceedings under the Act and that the same was dismissed on 16.11.2001. However, the First Petitioner's husband filed W.P.No.2449 of 2002 and the same was also dismissed by this Court granting liberty to him to make a representation before the NTC Limited, which, in turn, was directed to consider the representation and pass appropriate orders.
10. Based on that, the First Petitioner made a representation on 24.1.2011 to the Second Respondent requesting to accept the market value of the land encroached by her husband. The matter was placed before the 375th meeting of the Board of Directors that took place on 25.10.2017. The extract of the minutes of the said meeting of the Board of Directors runs as under :
"Item No.375.09 :
Rejection of representation dated 24.1.2011 submitted by Mrs.K.Easwari, wife of late Shri. Kalimuthu Gounder for sale of plot measuring 170.50 sq.ft at market rate of Coimbatore Murugan Mills, Coimbatore."
11. An eviction order was passed by the NTC Limited under the Act, which was subsequently assailed by the First Petitioner's husband and it was decided in favour of the company on the ground that the First Petitioner's husband himself admitted putting up of construction in the land belonging to the NTC Limited. The Board was informed that after the death of her husband, the First Petitioner made a representation on 24.1.2011 stating her pathetic condition that if the encroached area is demolished, then the entire building will collapse and also sought to buy the encroached Land at market value. The Second Respondent/NTC Limited rejected the representation of the First Petitioner and the rejection order was communicated to the First Petitioner on 15.11.2016.
12. The First Petitioner made another representation dated 17.12.2016 praying for regularization of the portion of the land on humanitarian grounds. The Board of Directors of the NTC Limited had deliberated the subject matter in question and being the custodian of the Government land, opined that such an encroachment cannot be regularized even on consideration and accordingly, rejected the representation of the petitioner dated 24.1.2011 for sale of plot measuring 170.50 sq. ft. of Murugan Mills, Coimbatore.
13. The First Petitioner was issued with a notice by the First Respondent to vacate the encroached land measuring 170.50 sq.ft and directed her to remove the materials within six weeks from the date of receipt of the said communication. According to the Respondents, the Petitioners are stalling the further proceedings under the Act to evict them from the encroached lands belonging to Murugan Mills, Coimbatore.
14. The Learned Counsel for the Petitioners, by way of Reply, points out that based on humanitarian and sympathetic condition, the request of the Petitioners may be considered by the Respondents.
15. However, the Respondents have not accepted the request of the petitioners. When the husband of the First Petitioner admitted in regard to putting up the construction in the land belonging to the NTC Limited, what the first petitioner prayed in her representation is only to sell the encroached land to her by the NTC Limited after payment of the market price. Even alternatively, she had given an option of another land to be taken over by the Respondents.
16. We have heard the arguments advanced by the Learned Counsel on either side and noticed their contentions.
17. It is not in dispute that the First Petitioner's husband was an employee of the mill and he had put up the construction by encroaching upon an extent of 170.50 sq.ft. The said encroachment was directed to be removed by the Respondents by requiring the First Petitioner to vacate from the encroached portion. The Respondent Authorities have, in fact, rejected the representation of the First Petitioner dated 24.1.2011 for sale of plot measuring 170.50. sq.ft of Cbe. Murugan Mills, Coimbatore. Even the patta and revenue records do stand in the name of Murugan Mills, Coimbatore and the extent of land encroached also stands in the name of Murugan Mills, Coimbatore, which is a sick mill under the Sick Textile Undertakings (Nationalisation) Act, 1974. The landed property of the mill had now become the property of the NTC Limited by virtue of the ingredients of Sections 3 and 4 of the Sick Textile Undertakings (Nationalisation) Act, 1974 and as such, the land is free from encumbrances affecting it.
18. In spite of the fact that the First Petitioner's husband had encroached upon an extent of 170.50 sq.ft in the land belonging to Murugan Mills, Coimbatore and the fact that the mill had considered the request of the First Petitioner to sell away the land encroached in her favour by the Respondents, it cannot be lost sight of that the respondents, as custodia legis, is to preserve and protect the property of the sick mill namely Murugan Mills, Coimbatore and that they cannot take any sympathetic or humanitarian consideration on moral grounds because of the reason that the Act of the year 1971 has been introduced by conferring right on the Government or Statutory Bodies to speedy recovery of possession from the persons occupying their premises.
19. It is to be noted that the issuance of an order of 'Mandamus' is, as a General Rule, a matter for the discretion of the Court, which is not granted either as a matter of routine or as of right. The object of 'Mandamus' is to prevent disorder from the failure of justice and is required to be granted in all cases where law has established no specific remedy, as per the decision of the Hon'ble Supreme Court in the case of Union of India Vs. S.B.Vohra [reported in AIR 2004 SC 1402].
20. Indeed, a 'Writ of Mandamus' may be issued in favour of an individual, who proves a legal right in him. In short, the prime contention of 'Mandamus' is to compel action. As a matter of fact, a 'Mandamus' cannot be issued to substitute the judgment or discretion of the Court for that of Authority against whom it is issued. A Court of Law cannot take decision, which, in law, is required to be taken by a Statutory Authority.
21. The genesis of the Public Premises (Eviction of Unauthorized Occupants) Act, 1971 only presupposes that the premises in question is a public premises either belonging to the Government or to the Statutory Bodies. The premises is in occupation of a person, who is or has become an unauthorised occupant and the Government or the Statutory Body intends to evict him. As such, this Court is of the considered view that the notice issued by the Respondents as well as the final order passed by the Respondents rejecting the request of the First Petitioner to sell the extent of 170.50 sq.ft, do not suffer from any material irregularities or patent illegalities in the eye of Law.
22. In fact, the Respondents issued a notice under Section 4 of the Act and it is mandatory in nature. The Authorities have fulfilled all the legal formalities and the summary procedure under the Act prescribed for evicting the Petitioners/unauthorized occupants, which cannot be, by any means, termed as an illegal one. Viewed from that perspective, this Court is of the opinion that the writ petition is devoid of merits.
23. In fine, the writ petition is dismissed leaving the parties to bear their own costs. Consequently, the connected WMP is also dismissed. Before parting with the case, this Court makes it crystalline clear that the Petitioners are granted time till 08.6.2018 to vacate the premises in question and hand over possession. If the Petitioners do not vacate from the encroached portion in question, it is open to the Respondents to seek the assistance of police, if situation so warrants/if need be and proceed further.
24. Registry is directed to list the matter on 22.6.2018 for 'Reporting Compliance'.
19.3.2018 Index : Yes Internet: Yes M.VENUGOPAL,J AND S.VAIDYANATHAN,J RS To:
1.The Estate Officer, National Textile Corporation (TN & P) Limited, NTC House, 355, Somasundaram Mills Road, Coimbatore-641009.
2.The NTC Limited, rep.by Murugan Mills, NTC House, No.35, Somasundaram Mills Road, Coimbatore-641009.
3.The Chairman & Managing Director, NTC Limited, Scope Complex, Core IV No.7, Lodhi Road, New Delhi.
WP.No.33509 of 2017& WMP.No.37014 of 2017 19.3.2018