Madras High Court
Elangovan vs The Tamil Nadu Slum Clearance Board on 30 August, 2022
Author: N.Anand Venkatesh
Bench: N.Anand Venkatesh
W.P.No.12694 of 2015
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 30.08.2022
CORAM
THE HON'BLE MR. JUSTICE N.ANAND VENKATESH
W.P.No.12694 of 2015
1.Elangovan
2.R.Baskaran ...Petitioners
Vs.
1.The Tamil Nadu Slum Clearance Board,
represented by its Chairman and Managing Director,
No.5, Kamarajar Salai, Chepauk, Chennai – 600 005.
2.The Executive Engineer,
Division – III,
Old Zone No.3, New No.4,
The Tamil Nadu Slum Clearance Board,
Vyasarpadi, Chennai – 600 039.
3.The Tahsildar,
Purasawalkam,
Perambur,
Chennai.
4.The Chennai Central Co-operative Bank Limited,
Represented by its Manager,
Prakasam Salai, Chennai – 600 001. ...Respondents
Prayer:- Writ Petition is filed under Article 226 of the Constitution of India to issue a
Writ of Mandamus directing the respondents 1 to 3 to pay the petitioners, the sum of
Rs.1.5 crore as damages being the value of the land and building and Rs.50 lakhs
which the petitioners estimate by way of compensation for the mental agony and
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W.P.No.12694 of 2015
sufferings and Rs.2 lakhs being the loss of their belongings by way of theft and
looting, in all Rs.2,02,00,000/- or in the alternative to provide them a land of an
extent of 1536 sqft, in the same area viz., Vyasarpadi, Chennai – 600 039 and Rs.60
lakhs being the cost of construction of building and Rs.50 lakhs which the petitioners
estimate by way of compensation for the mental agony and sufferings and Rs.2 lakhs
being the loss of their belongings by way of theft and looting in all Rs.1,12,00,000/-.
For Petitioners : M/s.C.P.Sivamohan
For Respondents : Mr.P.Kumaresan
Additional Advocate General
Assisted by Mr.G.Sivakumar for R1 & R2
Mr.P.Kumaresan
Additional Advocate General
Assisted by Mr.U.Baranidharan
Additional Government Pleader for R3
Mr.A.Selvendran
Special Government Pleader for R4.
ORDER
This Writ Petition was filed seeking for the issue of a Writ of Mandamus directing the respondents 1 to 3 to pay damages and compensation to the petitioners for illegally demolishing the building and taking away all their valuables and grabbing the possession from the petitioners with respect to the subject property.
2.The case of the petitioners is that their father was in possession and enjoyment of the subject property from the year 1964 onwards and through https://www.mhc.tn.gov.in/judis 2/17 W.P.No.12694 of 2015 proceedings dated 05.03.1964, the Special Tahsildar, had assigned the property in favour of the father of the petitioners and he had put up a hut and was in possession and enjoyment of the same. Thereafter, the father of the petitioners settled the subject property in favour of the petitioners through a deed of settlement dated 17.10.2002. Thus, the petitioners are claiming to be the joint owners of the subject property measuring an extent of 1536 sqft.
3.The further case of the petitioners is that they were also issued joint patta in patta No.5385/2002 and they were given planning permission and building permission to put up the construction by the Corporation of Chennai. That apart, they had also mortgaged the property and had taken loan from the fourth respondent. Thereby, the petitioners being the absolute owners of the subject property, were in possession and enjoyment of the property and had also dealt with the property as absolute owners.
4.The grievance of the petitioners is that on 14.12.2014, the officials belonging to the first and second respondents all of a sudden directed the petitioners to vacate the property and they removed all the belongings and valuables of the petitioners and forcibly evicted and thereafter demolished the building. Aggrieved by the same, the present Writ Petition has been filed before this Court seeking for compensation and damages.
https://www.mhc.tn.gov.in/judis 3/17 W.P.No.12694 of 2015
5.The counter affidavit was filed by the first respondent. The stand taken by the first respondent is that eighty-six families had encroached upon the land in survey No.779/23 and they were living even without basic amenities. The Government of Tamil Nadu through G.O.Ms.No.397, dated 07.07.2005, reclassified the land and handed over possession to the first respondent. The first respondent took steps to construct tenements and conducted an enumeration during the year 2010. At that point of time, the petitioners were found to be encroachers and they refused to come under the enumeration conducted by the first respondent. A further stand has been taken in the counter affidavit to the effect that the second petitioner is one of the beneficiaries of the tenement scheme for which temporary allotment was issued in the name of the wife of the second petitioner.
6.The first respondent has taken a further stand to the effect that there was no assignment patta granted in favour of the father of the petitioners and the lands in question were classified as Eari Poramboke and there is no question of assigning such land in favour of the father of the petitioners. It is stated that the Government handed over possession of the property after re-classification in Survey No.779/23 and there was a proposal for the first respondent to construct 960 tenements by getting the necessary grants. A further stand has been taken to the effect that a notice was issued to the first petitioner under the relevant Rules of the Tamil Nadu Slum Clearance https://www.mhc.tn.gov.in/judis 4/17 W.P.No.12694 of 2015 Board (Control and Management of Properties) Rules, 1971 and the petitioners are very well aware that they are encroachers in a property belonging to the Government. Hence, eviction was carried out as per the Rules and the respondents removed the illegal constructions put up by the petitioners and took possession of the property. Accordingly, the respondents have sought for the dismissal of this Writ Petition.
7.When the Writ Petition came up for hearing on 14.02.2022, this Court passed the following order:-
Verified the original records produced by the Government. Deputy Tahsildar Mr.M.Manavalan submitted that there is total ban for assigning the land in respect of Perambur Taluk. The land in dispute in the present Writ Petition lies within the jurisdiction of Perambur Taluk. Therefore, no assignment could have been issued during the relevant period. Further, the learned Additional Advocate General would submit that the land which fall under the jurisdiction of Perambur Taluk, it is only the Special Thasildar assigned to Perambur Taluk can issue assignment and not the Special Thasildar of Saidapet Taluk. He would also submit that G.O.(Ms).No.1135, Revenue Department dated 17.03.1962, Perambur Taluk does not find a place and it is only Saidapet Taluk, Sriperumbuthur and Ponneri Taluk are mentioned. Therefore, even assuming that it was issued by Saidapet Taluk, it is without jurisdiction and it cannot be called as a Government document at all.
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2. The learned counsel appearing for the petitioner would submit that he will verify the records and get instructions from his client.
3. Mr.Selvendran learned counsel for the 4th respondent would submit that the petitioner has defaulted the repayment of the loan obtained from the bank. Therefore, they filed a suit recovery of money and initiated execution proceedings for attachment of property. At that time it came to light that the petitioner has pledged the flat allotted by the Tamil Nadu Slum clearance Board.
4. From the submission it is noted that the title of Slum Clearance Board is impliedly admitted by the petitioner. To clarify all these points, post the matter on 21.02.2022 at 2:15 p.m.
5. The learned Additional Government Pleader would also undertake to produce 'A' Register and some model assignment deeds pertaining to Perambur Taluk if they are available or other assignment deeds at the relevant period for clarifying the issue.
8.Thereafter, the Writ Petition came up for hearing on 28.04.2022 and this Court passed the following order:-
The petitioner has produced two assignment deeds of the year 1964. These assignment deeds were issued by the Tahsildar of Saidapet Taluk in respect of the land situated in Perambur.
2. The learned Additional Advocate General appearing for the respondents would submit that the Tahsildar of Saidapet Taluk has no jurisdiction over Perambur Taluk. He can issue assignment only within the Taluk of Saidapet over which he has jurisdiction. In https://www.mhc.tn.gov.in/judis 6/17 W.P.No.12694 of 2015 respect of the property situated in Perambur Taluk, the Tahsildar of Saidapet Taluk has no jurisdiction and it was not a practice during the relevant point of time. Here, the petitioner has produced two assignment deeds said to have been issued by the Tahsildar of Saidapet Taluk in respect of the property situated in Perambur Taluk, one in his favour and another in favour of a third party.
3. The learned counsel for the petitioner would submit the Government proceedings in respect of Government lands, wherein, it is clearly instructed to the District Collectors that the disposal of Government lands shall be made with consultation of the Heads of the Government Departments. The ban was imposed not to dispose of the lands within 20 Km radius of Chennai without consulting the Heads of the Departments. However, permission was accorded to the District Collectors to leave out encroachments of residential hubs and house cites, which measured only a few cents.
4. Accordingly, the learned counsel for the petitioner would submit that the assignments were given by the Tahsildar of Saidapet Taluk under the instructions of the District Collectors, more particularly, the District Collectors of Chennai and Chengalpattu. Since the instructions were given by the District Collectors, it can be verified by an Officer superior to the rank of District Collector. For this purpose, the records for that relevant period can be verified only from the Government records.
5. Therefore, a direction is given to the Commissioner of Land Administration or the Commissioner of Revenue Administration, who ever be the competent authority having access to the records in this case and to verify the genuinety of the https://www.mhc.tn.gov.in/judis 7/17 W.P.No.12694 of 2015 assignment deeds, practice followed during that relevant period and whether the Tahsildar of Saidapet Taluk has jurisdiction to issue assignment deed in favour of house site at Perambur and to file a comprehensive affidavit before this Court with supporting documents.
6. The Registry is directed to communicate the order of this Court to
(a) the Commissioner of Land Administration, and
(b) the Commissioner of Revenue Administration.
7.Post the matter after summer vacation.
9.Pursuant to the above order, a status report was filed by the Commissioner of land Administration on 16.08.2022. On going through the same, this Court passed the following order on 16.08.2022.
Pursuant to the earlier order passed by this Court on 28.04.2022, a status report has been filed by the Commissioner of Land Administration. The relevant portions in the status report are extracted hereunder:-
“9.It is also respectfully submitted that in G.O.Ms.No.1135, Revenue dated 17.03.1962, the Government have issued general ban on assignment of land within 20 miles (32 kilometers) around Madras in Changalpattu District. List of villages lying within 32 Kilometers from the Madras City Limit in Saidapet Taluk, has also been annexed with the said G.O. In the list of the villages covered in Saidapet Taluk, the Perambur village has not been mentioned. Had the Perambur village fell under the jurisdiction of Saidapet Taluk, it would have been noted in the above list. Hence, the claim of the https://www.mhc.tn.gov.in/judis 8/17 W.P.No.12694 of 2015 petitioner that the subject land was granted assignment by the Tahsildar, Saidapet Taluk it seems to be frivolous and non exist in law.
10.It is respectfully submitted that, the Government land in S.No.779/23 is measuring to an extent of 1 Cawnie 14 grounds and 0386 Sq.feet and stands classified as “Circar Poromboke” for several years. No order or assignment or no patta seems to have been issued in the said survey field. The said land originally vested with the Public Works Department.
11.It is submitted that the permanent land register pertaining to the subject land maintained by the revenue authorities has been personally verified. The subject land is located in S.No.779/23 to the extent of 127 cawnie 9 grounds 1816 sq.ft. was registered as Vyasarbadi Irrigation Tank and in the occupier column noted as government Revenue Department. Thereafter, the said survey field was subdivided and allotted to various Government Departments including TNHUDB. Various transactions took place in the adjacent fields during the year 1952 to 1962 proper entries were made in the revenue records by the competent authorities. Had there been any assignment made as claimed by the petitioner, it would have been properly noted in the permanent land register. Hence, the claim of the Writ petitioner deserves no consideration and liable for rejection”.
2.It is clear from the stand taken by the Commissioner of Land Administration that no assignment was granted in favour of anyone with respect to the subject property and in fact the subject property located at survey No.779/23 has been subdivided and allotted to https://www.mhc.tn.gov.in/judis 9/17 W.P.No.12694 of 2015 various Government Departments during the year 1952 to 1962 and appropriate entries were also made in the revenue records.
3.The learned counsel for the petitioners sought for sometime to answer the stand taken by the Commissioner of Land Administration.
4.Post this Writ Petition under the caption “Part Heard Cases” on 30.08.2022 at “2.15p.m”.
10.The Writ Petition was taken up for hearing today. The learned counsel for the petitioners submitted that there was an inadvertent error by stating that the assignment was made in the year 1964 and actually the assignment was given only in the year 1980. The learned counsel further submitted that apart from the father of the petitioners, such assignment was also given in favour of third parties and they are also in possession and enjoyment of the property. Whereas, it was only the petitioners who were targeted and the building was demolished and they were illegally evicted from the property. The learned counsel further submitted that the source of right and title over the subject property was only the assignment deed that was granted in favour of the father of the petitioners and if really the respondents wanted to take possession of the property, they should have issued proper notice for cancellation of the assignment deed and given an opportunity to the petitioners and only thereafter they should have taken further action. The respondents did not follow any procedure https://www.mhc.tn.gov.in/judis 10/17 W.P.No.12694 of 2015 and all of a sudden they encroached upon the property and demolished the building and the petitioners were left in the streets. Hence, the learned counsel for the petitioners insisted for the payment of compensation and damages by the respondents.
11.Per contra, the learned Additional Advocate General appearing on behalf of the first and second respondents submitted that the so called assignment deed that was relied upon by the petitioners is not a genuine document. In order to substantiate his submissions, the learned Additional Advocate General placed reliance upon G.O.M.s.No.1135, dated 17.03.1962, whereby the Government issued a ban on assignment of land within 20 miles (32 Kilometers) around Madras. The learned Additional Advocate General also brought to the notice of this Court that Perambur Village did not fall within the jurisdiction of Saidapet Taluk, and hence the grant of assignment by the Tahsildar, Saidapet Taluk, in favour of the father of the petitioners is unsustainable and there would not have been any such assignment in favour of the father of the petitioners. The learned Additional Advocate General further submitted that if really any assignment had been made in the name of the father of the petitioners, necessary entry would have been made in the permanent land register and whereas, no such entry is found. In view of the same, the learned Additional Advocate General sought for the dismissal of the Writ Petition mainly on the ground that the very assignment that was relied upon by the petitioners is questionable and https://www.mhc.tn.gov.in/judis 11/17 W.P.No.12694 of 2015 no such assignment was ever made in favour of the father of the petitioners.
12.This Court has carefully considered the submissions made on either side and the materials available on record.
13.It is not necessary for this Court to get into the controversy as to whether the assignment was made in the year 1964 or in the year 1980. The only issue to be considered is as to whether any assignment was ever made with respect to the lands in survey No.779/23. The claim made by the petitioners is that the subject property measuring an extent of 1536 sqft was assigned in favour of the father of the petitioners in survey No.779/23. The further case of the petitioners is that such assignment was made in favour of other third parties also and in order to substantiate the same, one such assignment order was also produced before this Court, wherein the assignment was done in favour of one Rathinam, son of Anjan.
14.This Court wanted to ascertain the real facts and hence had directed the Commissioner of Land Administration to scrutinize all the relevant records and to file a report. The contents of the report has already been extracted Supra. It is clear from the report that the Government land in survey No.779/23 was classified as a Circar Poromboke several years back. That apart, no order or assignment or patta was issued in so far as the said survey field. The petitioners claim that the assignment was https://www.mhc.tn.gov.in/judis 12/17 W.P.No.12694 of 2015 made in favour of their father by the Tahsildar, Saidapet Taluk. Whereas, it is seen from the report that Perambur Village does not fall within the jurisdiction of Saidapet Taluk. Therefore, it has been stated in the report that the Tahsildar, Saidapet Taluk, would not have issued any assignment order in favour of the father of the petitioners with respect to the subject property. It is also clear from the report that there is no corresponding entry made in the permanent land register if really any such assignment was made in favour of the father of the petitioners. The report further states that the property in survey No.779/23 has been sub-divided and appropriate entries were also made in the revenue records.
15.It is clear from the above that the very assignment order that has been relied upon by the petitioners has been put to question. The source of right and title over the property is the so called assignment order and the very existence of such an order is highly doubtful in view of the report submitted by the Commissioner of Land Administration. It is also clear from the counter affidavit filed by the first respondent that the notice was served on the occupants of the property under the relevant Rules and thereafter the possession was taken over.
16.If the petitioners are found to be encroachers in a Government land and they have put up a construction over the same, the Government and the concerned authorities will always have the right to evict such encroachers. The very fact that the https://www.mhc.tn.gov.in/judis 13/17 W.P.No.12694 of 2015 petitioners managed to get planning permission and had also mortgaged the property, does not in anyway enhance the right and title of the petitioners over the subject property.
17.In the present Writ Petition, the only issue that requires the consideration of this Court is as to whether there was really an assignment order in favour of the father of the petitioners. If such an assignment order itself becomes questionable, the possession of the petitioners over the property has to be necessarily construed as the possession by encroachers. The learned counsel for the petitioners in the course of his arguments, submitted that only the petitioners were targeted and similarly placed persons are continuing to deal with their properties based on the assignment orders and no action has been taken against them. It is now well settled that there is no equality in illegality and just because some other persons are also relying upon a questionable assignment order and are in possession and enjoyment of the property, that does not in anyway enhance the right and title of the petitioners in the subject property. It goes without saying that similarly placed persons like the petitioners are also liable to be evicted by the respondents.
18.In view of the above discussion, this Court does not find any ground to grant the relief as sought for by the petitioners. There shall be a direction to the first and second respondents to immediately take action against those persons who are https://www.mhc.tn.gov.in/judis 14/17 W.P.No.12694 of 2015 claiming to have an assignment order in survey No.779/23 and they shall also be evicted from the subject property. This process shall be completed by the first and second respondents within a period of three months from the date of receipt of copy of this order. There must be uniformity whenever action is initiated by the official respondents and this Court expects the first and second respondents to deal with all the encroachers in the same manner in which they dealt with the petitioners.
19.In the result, this Writ Petition is dismissed in the above terms. No costs.
30.08.2022 ep Index:Yes/No Speaking Order: Yes/No To
1.The Tamil Nadu Slum Clearance Board, represented by its Chairman and Managing Director, No.5, Kamarajar Salai, Chepauk, Chennai – 600 005.
2.The Executive Engineer, Division – III, Old Zone No.3, New No.4, The Tamil Nadu Slum Clearance Board, Vyasarpadi, Chennai – 600 039.
https://www.mhc.tn.gov.in/judis 15/17 W.P.No.12694 of 2015
3.The Tahsildar, Purasawalkam, Perambur, Chennai.
4.The Chennai Central Co-operative Bank Limited, Represented by its Manager, Prakasam Salai, Chennai – 600 001.
N.ANAND VENKATESH.J., ep https://www.mhc.tn.gov.in/judis 16/17 W.P.No.12694 of 2015 W.P.No.12694 of 2015 30.08.2022 https://www.mhc.tn.gov.in/judis 17/17