(Prayer: Writ Petition filed under Article 226 of Constitution of India, seeking for a Writ of Certiorarified Mandamus, calling for the records of the First Respondent in letter No. 22452/LA3(1) of 2017-17 dated 28.02.2019 and quash the same and consequently direct the Second to Fifth Respondents to re-allot the suit schedule premises to the Petitioner.)
1. Heard Mr. B. Sundar, Learned Counsel for the Petitioner, Mr. R. Venkatesh, Learned Government Advocate appearing for the First Respondent and Mr. R. Bharath Kumar, Learned Standing Counsel appearing for the Second to Fifth Respondents and perused the materials placed on record, apart from the pleadings of the parties.
2. The chronological sequence of events leading to the filing of this Writ Petition are given below:-
(i) It is claimed by the Petitioner that her father, viz., M. Balaraman, was a Contractor of erstwhile City Improvement Trust which has been subsequently taken over by the Tamil Nadu Housing Board on its establishment after the Tamil Nadu State Housing Board Act, 1961, came into force.
(ii) According to the Petitioner, the said M. Balaraman has been in occupation of an extent of 600 sq. ft. of land with building bearing car shed No. 2-A adjoining Madavelipakkam Bus Depot, Madvelipakkam Scheme, Nandanam, Chennai – 600035, as lessee from the year 1959 for a period of 99 years.
(iii) After the death of the said M. Balaraman on 02.11.1990 and that of his wife, viz., Lakshmi, on 28.04.1992, the Petitioner, who is their daughter, claims to have continued to be in occupation of the aforesaid property by remitting rent for the same.
(iv) The Executive Engineer and Administrative Officer, Tamil Nadu Housing Board, Chennai had issued show cause notice No. N.T.R. 9/1810/2013 dated 11.11.2013 to the said M. Balaraman stating that he had unauthorizedly converted the car shed for commercial purpose and had unauthorizedly replaced the existing roof with R.C.C. ceiling without any permission and he was called upon to show cause as to why the allotment of car shed to him should not be cancelled and vacate him from that property.
(v) The Petitioner by letter dated 18.11.2013 sent a reply to the Executive Engineer and Administrative Officer, Tamil Nadu Housing Board, Chennai stating that she was the daughter of the said M. Balaraman to whom the aforesaid show cause notice No. N.T.R. 9/1810/2013 dated 11.11.2013 has been sent and that the said M. Balaraman had in the year 1989 written a letter to the Tamil Nadu Housing Board stating that the R.C.C. roof of the car shed was damaged due to heavy rain and storm and had asked for permission to repair the same for which the Tamil Nadu Housing Board had indirectly consented and that it was claimed that they had not leased or sub-let the property to any third party and they had not defaulted in paying any rent for the same till then.
(vi) The Petitioner also sent a legal notice dated 25.11.2013 through her advocate calling upon the Executive Engineer and Administrative Officer, Tamil Nadu Housing Board Officer, Tamil Nadu Housing Board, Chennai to withdraw the aforesaid show cause notice No. N.T.R. 9/1810/2013 dated 11.11.2013 which according to the Petitioner was based upon a false news in a newspaper and it was warned that in the event of failure to do so, the Petitioner would be constrained to take civil, criminal and defamatory proceedings.
(vii) A reply dated 21.01.2014 was sent by the Executive Engineer and Administrative Officer, Tamil Nadu Housing Board, Chennai to the said Advocate for the Petitioner stating that as per the policy followed by the Tamil Nadu Housing Board, when a tenant, who was alloted the building under public quota dies, his legal heirs would have to vacate from the premises occupied by the deceased allottee immediately, failing which he would have to pay penal rent, apart from facing action for eviction.
(viii) The Executive Engineer and Administrative Officer, Tamil Nadu Housing Board, Chennai by proceedings No. N.T.R. 9/1810/2013 dated 21.02.2014 informed the Petitioner that the explanation of the Petitioner in response to the show cause notice No. N.T.R. 9/1810/2013 dated 11.11.2013 was not satisfactory and that it had been proved that the roof of the building was converted to R.C.C. ceiling without any permission and the car shed had been unauthorizedly converted for commercial purposes and as the original allottee, viz., M. Balaraman, had died as informed by the Petitioner, there was no legal right for the Petitioner to continue the occupation of the premises and the allotment made in favour of her father, viz., M. Balaraman was cancelled and she had to vacate and hand over the possession of the premises, failing which further action would be taken in that regard.
(ix) At that stage, without challenging the order of cancellation dated 21.02.2014, the Petitioner had filed a Writ Petition in W.P. No. 7972 of 2014 in this Court for a direction to confirm the allotment of the Petitioner which was claimed to have been already allotted to her name in the year 1979, as legal heir of the said M. Balaraman.
(x) This Court by a self-explanatory order dated 03.10.2017 disposed the said Writ Petition in W.P. No. 7972 of 2014, holding as follows:-
“3. After notice to the respondents, the matter is taken up today for hearing. Learned Additional Advocate General appearing for the respondents 2 to 5 submitted that the prayer in the writ petition is not maintainable, since the allotment granted in the name of the petitioner was already cancelled by the Tamilnadu Housing Board as early as on 21.01.2014, even before filing the writ petition. Therefore, he submitted that the petitioner has to only challenge the order of cancellation before the appropriate Appellate Forum under Section 86 of the Tamilnadu Housing Board Act.
4. On the other hand, learned counsel appearing for the petitioner submitted that the very cancellation order itself was served on the petitioner only on 22.09.2017 and before the said day, the respondents have not chosen to communicate the said order to the petitioner in any mode.
5. Learned Additional Advocate General appearing for the respondents 2 to 5 further submitted that pursuant to the issuance of the cancellation order, they have also taken possession. The said statement is disputed by the learned counsel for the petitioner by specifically contending that the possession is still with the petitioner. This Court, at this stage, is not inclined to go into that aspect, as the petitioner has to necessarily challenge the order of cancellation before the Appellate Authority, as provided under the said statute.
Accordingly, this writ petition is disposed of as follows:
a) The petitioner is permitted to file an appeal before the Appellate Authority under Section 86 of the Tamilnadu Housing Board Act, challenging the order of cancellation within a period of two weeks from the date of receipt of a copy of this order;
b) On receipt of such appeal, the concerned Appellate Authority shall dispose of the appeal, on merits and in accordance with law, after giving due opportunity of hearing to the petitioner, within a period of four weeks thereafter;
It is made clear that this court is not expressing any view on the merits of the matter, as it is for the Appellate Authority to consider and decide. However, till the disposal of the appeal, both the parties are directed to maintain status quo as on today. No costs. The connected miscellaneous petitions are closed."
(xi) Thereafter, the Petitioner filed an appeal before the First Respondent, viz., the Secretary to the Government of Tamil Nadu, Housing and Urban Development Department, who by order No. 22452/LA3(1)/2017-17 dated 28.02.2019 after referring to the aforesaid facts as borne out from the records, passed the following order:-
"4. In the reference fourth cited, the Chief Revenue Officer, Tamil Nadu Housing Board has sent his report on the representation of Petitioner and stated that, rental flats constructed at Mandavelipakkam is now in dilapidated condition of 12 HIG flats at the cost of Rs.296.00 lakhs after demolishing the existing flats. Hence, the request of the Petitioner to confirm the allotment in her favour is not feasible for compliance and the same may be rejected.
5. In the reference fifth cited, as per Hon'ble High Court direction, personal hearing was given to the Appellant Tmt. B. Maragathamani Balaraman on 02.02.2018. In the reference sixth cited, after personal hearing the Appellant has given further representation to the Government and requested to set aside the cancellation of lease order of the Housing Board dated 21.02.2014 bearing reference No. NTR.9/ 1810/2013 and hand over the documents allotted by the erstwhile City Improvement Trust to the Appellant herein and re-allot the allotted space until the expiry of the original 99 years lease.
6. In the reference seventh cited, the Chief Revenue Officer, Tamil Nadu Housing Board has forwarded the following report of the Executive Engineer and Administrative Officer, CIT Nagar Redevelopment Works Division vide his letter dated 07.01.2019.
* The land situated in S. No. 4311/3 part, South Canal Road adjacent garage No. 2A, situated in between TNGRHS rental flats and MTC depot Mandavelipakkam scheme to an extent of 800 sq. ft. was allotted to Mr. Balaraman on rental basis and construction area of 220 sq. ft. and allotted for car parking.
* Further necessary show cause notice has been issued to Thiru. M. Balaraman vide Letter No. NDR/1810/2013 dated 11.11.2013 under Section 84(2) of the TNHB Act, 1961 seeking explanation from the allotee for unauthorized construction of RCC roof without getting proper permission from the Board and directed to submit the reply within 15 days from the date of receipt of the notice, failing which necessary action will be taken for cancellation of allotment and to take over the premises under Board custody.
* In response to the above notice a reply letter dated 18.11.2013 received from Tmt. B. Maragathamani introducing herself as daughter of M. Balaraman and W/o. G. Babuganesh stating that garage was allotted in 1961 to her father Thiru. M. Balaraman, while he was a contractor in TNHB and stated that they have not leased or sublet to anybody else. Simultaneously she issued a legal notice demanding to withdraw the show-cause notice dated 11.11.2013 informing that Thiru M. Balaraman and his W/o. Lakhsmi was deceased and she is in occupation of the premises.
* The AEE/Mandavelipakkam has inspected the site again on 22.11.2013, and found that further unauthorized construction work was carried out such as raising the wall portion, construction of open staircase and fixing iron-gate. And is also found that the garage 2 A was used as lubricant and oil shop, whereas the garage has been allotted for the purpose of car parking.
* The AEE has verified the site and removed the party election booth with the evidence of taking photo copies and also send the photo copies to the 'Revenue Officers/TNHB on 01.042014. Under such circumstances, Tmt. Maragathamani filed W.P. No. 2972/2014 on the file of Hon'ble Madras High Court for Mandamus “to confirm the allotment in her favour'” without challenging the cancellation order dated 21.02.2014. While pending Writ Petition, a legal opinion was obtained from the legal adviser of TNHB on 28.07.2016 to carry out the eviction process in respect of garage No. 2A, and the legal advisor was also advised to proceed with eviction, since there is no interim order in the above Writ Petition.
* Accordingly, an eviction process was executed on 18.08.2017 and the garage premises was sealed 'as it is where is condition' without taking any materials from the site in presence of Revenue Inspector IV, Mylapore Taluk and Inspector of Police, Law & Order, E5, Foreshore Estate PS.
* Tmt. Maragathamani Balaraman has filed the present appeal, wherein she claimed that the property in question was allotted to her father Late Mr. Balaraman way back in 1959 on lease for a period of 99 years and to that effect she failed to show/produce any proof to substantiate her claim.
* Further, there is no provision to leasing the property for 99 years and his office has not leased out any property and more particularly the board has not leased out the scheduled land to the appellant father and in fact it is allotted only for rental basis. Hence, her claim is totally incorrect.
* Further, the Appellant has stated that with the prior approval and sanction of the board, the said premises was allotted to her in the year 1979 and for which also she has not produced any document. Contrary to the above, she states in the year 1989 her father has made an application for reconstructing the collapsed roof.
* The Car parking has been proposed in the place of the 2A Garage area which is found to be essential for completion of the Mandavelipakkam Scheme.
* The Executive Engineer and Administrative Officer, CIT Nagar Redevelopment Works Division has also requested the Government for suitable orders in taking possession of the land/Garage 2A by the Housing Board.
7. In the reference eighth cited, one more opportunity of personal hearing on 14.02.2019 has been given to the Appellant. But, she has not appeared despite having received the notice. The documents relating to the 99 years 2 other claims have also not been produced despite repeated reminders over the last one year.
8. The Government, after careful examination, accept the report of the Chief Revenue Officer, Tamil Nadu Housing Board and reject the appeal of Tmt. B. Maragathamani against eviction order of Tamil Nadu Housing Board on the following grounds:-
(1) Tamil Nadu Housing Board has not leased out the said property to the original allottee Thiru Balaraman, but allotted on rental basis. The Appellant has not submitted lease documents, if any, in support of her claim. The rent has been paid by the Appellant in the name of the deceased original allottee through bank.
(2) As per Board rules, the allotment cannot be transferred to the legal heirs/minors. The claim that at the age of 10 years the name transfer made when the allottee was alive during 1979 and contrary to the above her father made an application in the year 1989 for reconstruction was false.
(3) The Garage was used as shop and further unauthorized construction was made.
(4) The project of construction of 12 SF HIG flats has been completed. The area under occupation by the Appellant, proposed for car parking is required to be hander over to the purchasers of the scheme/flats.
9. The Managing Director, Tamil Nadu Housing Board/Chief Revenue Officer is directed to take necessary action accordingly."
Aggrieved thereby, the present Writ Petition has been filed challenging the said order No. 22452/LA3(1)/2017-17 dated 28.02.2019 passed by the First Respondent and for a consequential direction to the Second to Fifth Respondent to re-allot the premises to the Petitioner.
3. In this Writ Petition, a self-explanatory order dated 21.06.2019 was passed by this Court, which reads as follows:-
"2. This Court during the earlier hearing on 11.04.2019, had recorded the representation of the Learned Counsel for the Second to Fifth Respondents that possession of the property has already been taken from the Petitioner. In support of that contention, Learned Counsel for the Second to Fifth Respondents relies on the proceedings of the Revenue Inspector dated 18.08.2017, a copy of which is produced in the typed-set of the Respondent.
3. However, the Learned Counsel for the Petitioner disputes the said contention and claims that despite the impugned order, possession of the property has not yet been taken by the Second to Fifth Respondents from the Petitioner.
4. In order to ascertain the correctness of the conflicting submissions, Mr. P. Gopiraja, Advocate, Madras High Court Advocate Association, High Court Building, Chennai - 600 104, (Cell: 9444050235) is appointed as Advocate Commissioner to immediately visit the property and file a report with photographs and sketch. The Learned Counsel for the Petitioner and the Respondents shall furnish copy of the respective pleadings and supporting documents to the Advocate Commissioner. The sum of Rs.12,000/- shall be paid by the Petitioner as initial remuneration to the Advocate Commissioner under written acknowledgement."
The Advocate Commissioner on inspection of the property on 26.06.2019 has submitted a report dated 27.06.2019 with photographs and rough sketch, stating as follows:-
"3. During the inspection, I found the main gate of the premises of the property as well as the rolling shutter gate of super structure building is locked. Further the open space of the property is found to be accumulated with garbage and the position and condition of property appears to be not in use.
4. It is vehemently contended by the Learned Counsel for the Petitioner that the said M. Balaraman and on his demise, the Petitioner, has been in continuous possession of the property by regular payment of rent from the year 1959 onwards, even before the formation of the Tamil Nadu Housing Board, as a Contractor of the erstwhile City Improvement Trust, which has culminated to adverse possession in favour of the Petitioner, and it was an arbitrary action to cancel the said allotment based on a newspaper report. It is also pointed out that the allotment of land as lease obtained from the City Improvement Trust was saved by the provisions of Section 162 of the Tamil Nadu State Housing Board Act, 1961, meaning thereby that the property occupied by the Petitioner cannot be treated like other leases granted under public quota, which are not heritable by the legal heirs of the lessees on their demise. It is further claimed that when the Petitioner was in occupation of the building in that property, the officials of the Tamil Nadu Housing Board ought not to have included the same by showing it as a vacant area while getting approval to a plan from the Chennai Metropolitan Development Authority for constructions proposed to be made in the adjacent land.
5. The aforesaid claims of the Petitioner are refuted by the Learned Standing Counsel appearing for the Second to Fifth Respondents by supporting the impugned order in the Writ Petition. It is strenuously urged by him that despite opportunity granted, the Petitioner has not placed any documents in support of her claims as lessee of the property from the erstwhile City Improvement Trust and that the rental receipts produced for paltry payments in the name of the deceased M. Balaraman in the Bank Account of the Tamil Nadu Housing Board cannot amount to recognition of a valid relationship of landlord and tenant between the Respondents and the Petitioner. In support of the proposition that on demise of an allottee of lease of the property of the Tamil Nadu Housing Board under public quota, his legal heirs cannot claim any right of inheritance to continue to occupy that property, strong reliance is placed on the decisions of the Division Benches of this Court in K. Saraswathi -vs- State of Tamil Nadu (Judgment dated 16.06.2010 in W.A. No. 1443 of 2008) and Ambrish Ashok Pathak -vs- Tamilnadu Housing Board (Judgment dated 04.02.2015 in W.A. No. 1722 of 2012), which have been confirmed by the Hon'ble Supreme Court of India in Ambrish Ashok Pathak -vs- Tamilnadu Housing Board (order dated 20.03.2015 in S.L.P. (Civil) No. 7732 of 2015). It is further submitted by him that as the property belongs to the Tamil Nadu Housing Board, it was lawful for its officials to have included the same while getting approval to a plan for construction of apartments in the adjoining lands which also belong to it while showing this area as open area for car parking.
6. Having regard to the aforesaid rival submissions of the parties, the question that arises for consideration in the Writ Petition is whether the order No. 22452/LA3(1)/2017-17 dated 28.02.2019 passed by the First Respondent requires any interference?
7. It has to be noticed from the facts of this case that neither the Petitioner nor the Respondents have produced any documents to show the manner in which the said M. Balaraman was granted lease of the property by the erstwhile City Improvement Trust, which came to be in the occupation of the Petitioner.
8. It is settled legal position as held by the Hon'ble Supreme Court of India in Anthony -vs- K.C. Ittoop & Sons [(2000) 6 SCC 394] that in the absence of any registered instrument of lease for a period exceeding one year, a person inducted into possession of a building by its owner and the payment of rent by him, has to be attributed to jural relationship of lessor and lessee between those parties falling within the second para of Section 107 of the Transfer of property Act, 1881. As already stated earlier, it is the specific case of the Tamil Nadu Housing Board that on the demise of an allottee of lease of the property under public quota, such lease automatically terminates and the legal heirs do not have any right to continue in occupation of such property. In this regard, reference may be made to the decision of the Division Bench of this Court in K. Saraswathi -vs- State of Tamil Nadu (Judgment dated 16.06.2010 in W.A. No. 1443 of 2008), in which it has been held as follows:-
"13. The decision taken by the Housing Board not to transfer the allotment under the public rental category was with a specific purpose. It was a decision taken in larger public interest. There are many people in the queue, claiming such allotment. It is only when the houses are vacated, the Housing Board would be in a position to consider their request for allotment. In case existing allotments are transferred from the name of original allottee to the legal heirs and thereafter, to the next generation, the property would continue to be in the hands of chosen few and others would be denied of such accommodation. Therefore, an element of social objective was behind the decision taken by the Board not to permit transfers to the legal heirs. We do not find any illegality in the said policy decision warranting our interference. The application submitted by the appellant was rejected on valid reasons, in the light of the prevailing policy of the Board. The matter was considered once again by the Government and the plea was again rejected. The issue was re-examined by the learned single Judge and arrived at a correct conclusion that the order does not warrant interference. We do not find any justifiable reason to take a different view in the matter."
The aforesaid view has been reiterated by the decision of another Division Bench of this Court in Ambrish Ashok Pathak -vs- Tamilnadu Housing Board (Judgment dated 04.02.2015 in W.A. No. 1722 of 2012), which has been upheld by the Hon'ble Supreme Court of India in Ambrish Ashok Pathak -vs- Tamilnadu Housing Board (order dated 20.03.2015 in S.L.P. (Civil) No. 7732 of 2015). It must also be recapitulated here that the Hon'ble Supreme Court of India has in no uncertain terms in Navaneethamal -vs- Arjuna Chetty [(1996) 6 SCC 166] ruled that the further continuance of occupation by a lessee of the property after the expiry of the period of lease was only permissive occupation and will not give cause for title by adverse possession.
9. The Hon'ble Supreme Court of India in General Manager, Electrial Rengali Hydro Electric Project, Orissa -vs- Sri Giridhari Sahu (Judgment dated 12.09.2019 in Civil Appeal No. 8071 of 2010), after referring to earlier decisions, has succinctly explained the scope of the certiorari jurisdiction of the High Courts as follows:-
“29. On the conspectus of the decisions and material, we would hold as follows:
The jurisdiction to issue writ of certiorari is supervisory and not appellate. The Court considering a writ application of Certiorari will not don the cap of an Appellate Court. It will not reappreciate evidence. The Writ of Certiorari is intended to correct jurisdictional excesses. A writ of prohibition would issue when a Tribunal or authority has not yet concluded its proceedings. Once a decision is rendered by a body amenable to Certiorari jurisdiction, certiorari could be issued when a jurisdictional error is clearly established. The jurisdictional error may be from failure to observe the limits of its jurisdiction. It may arise from the procedure adopted by the body after validly assuming jurisdiction. It may act in violation of principles of natural justice. The body whose decision which comes under attack may decide a collateral fact which is also a jurisdictional fact and assume jurisdiction. Such a finding of fact is not immune from being interfered with by a Writ of Certiorari. As far as the finding of fact which is one within the jurisdiction of the court, it is ordinarily a matter ‘off bounds’ for the writ court. This is for the reason that a body which has jurisdiction to decide the matter has the jurisdiction to decide it correctly or wrongly. It would become a mere error and that too an error of fact. However, gross it may amount to, it does not amount to an error of law. An error of law which becomes vulnerable to judicial scrutiny by way of Certiorari must also one which is apparent on the face of the record. As held by this Court in Hari Vishnu Kamath v. Ahmed Ishaque (AIR 1955 SC 233), as to what constitutes an error apparent on the face of the record, is a matter to be decided by the court on the facts of each case. A finding of fact which is not supported by any evidence would be perverse and in fact would constitute an error of law enabling the writ court to interf
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ere. It is also to be noticed that if the overwhelming weight of the evidence does not support the finding, it would render the decision amendable to certiorari jurisdiction. This would be the same as a finding which is wholly unwarranted by the evidence which is what this Court has laid down M/s. Perry and Co. Ltd. v. P.C. Pal, Judge of the Second Industrial Tribunal, Calcutta and others (AIR 1970 SC 1334)." On a reading of the cogent reasons stated in the order impugned in the Writ Petition viz-a-viz- the parameters laid down for interference in the exercise of discretionary power of judicial review under Article 226 of the Constitution, coupled with the legal principles governing the rights of the parties under the lease as set out supra, it is evident that none of the contentions of the Petitioner impeaching the order passed by the First Respondent, viz., the Secretary to the Government of Tamil Nadu, Housing and Urban Development Department, could be countenanced. In the absence of any infirmity shown in the decision making process of the Respondents, this Court does not find any justifiable reason to interfere with the impugned order. 10. As the Petitioner has raised a factual dispute regarding the taking over the possession of the property on 18.08.2017, and the Advocate Commissioner, who inspected the property pursuant to the order dated 21.06.2019 passed by this Court, has found the building to have been locked in his report dated 27.06.2019, the same Advocate Commissioner shall once again visit the property and break open the lock with the assistance of the jurisdictional revenue and police authorities at 11.30 a.m. on 31.10.2019 and an inventory of the movables, if any, in that building shall be taken and the Tamil Nadu Housing Board shall take over the possession of the property. The entire proceedings shall be fully videographed at the cost borne by the Tamil Nadu Housing Board. The Advocate Commissioner shall be entitled to further remuneration of Rs.15,000/- from the Tamil Nadu Housing Board for carrying out the aforesaid exercise. If any of the movables found in the premises are claimed to be belonging to the Petitioner and are not taken custody by her then under written acknowledgement, the same shall be seized and removed from that premises and kept in safe custody to be sold in public auction and the proceeds realized thereof shall be appropriated towards damages for use and occupation payable by the Petitioner, without prejudice to the rights of the Tamil Nadu Housing Board to recover the amounts due towards the same in appropriate legal proceedings in the manner recognized by law. 11. In the result, the Writ Petition is dismissed with the aforesaid directions for resuming possession of the property, which is the subject matter of the Writ Petition. Consequently, the connected Miscellaneous Petitions are closed. No costs.