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Parthasarathy and anr. Vs. Kuppammal - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai High Court
Decided On
Case NumberC.R.P. Nos. 309 and 334 of 1978
Judge
Reported inAIR1980Mad246; (1980)2MLJ83
ActsTamil Nadu Slum Areas (Improvement and Clearance) Act, 1971 - Sections 29
AppellantParthasarathy and anr.
RespondentKuppammal
Appellant AdvocateP. Venkatachalapathi, Adv.
Respondent AdvocateK.P. Unnikrishnan, Adv.
Cases ReferredVaradappa Reddiar v. Tamil Nadu Slum Clearance Board
Excerpt:
.....act (xi of 1971), section 29--to institute suit for recovery of possession of properties in slum areas or to execute decree for possession in respect of properties in slum area--permission of the requisite authority--necessity of;suits were filed for eviction on the ground that the petitioners were unauthorised occupants of vacant lands. decrees for eviction were passed. when the execution petitions were filed in the year 1977 by the decree-holder, the petitioners took up objection to the executability of the said decrees on the ground that section 29 of the tamil nadu slum areas (improvement and clearance) act (xi of 1971) is a bar without there being a previous permission in writing of he prescribed authority being made available to the respondent which permission alone would..........further to the stage of the high court. in the meantime, under the provisions of the tamil nadu slum areas (improvement and clearance) act, 1971, (tamil nadu act 11 of 1971), a declaration was made under s. 3 of the said act, declaring the suit property as a slum area. this is seen from ex. p. 1. the respondent does not dispute that such a notification was made by the authorities under s. 3 (1) of the act. the common case is that at no time before 1977 the execution petition was filed. the petitioners took up the position that the decrees are not executable having regard to certain prescriptions in s. 29 of the act which would-lay an embargo on normal executability of decrees unless the decree-holder has obtained the permission in writing of the prescribed authority under the act. the.....
Judgment:
1. These matters, at the first instance, came before the learned Chief justice and at that stage a decision of Mohan J. in Varadappa Reddiar v. Tamil Nadu Slum Clearance Board,[1977) 2 Mad LJ (SN) 17, was relied on by the respondent herein. Since the learned chief justice was not inclined to agree with the view of Mohan, J. the matter has been referred to a Division Bench and following is the order of reference:

"The Honorable the Chief Justice: - revision petitions raise rather an interesting question. The suits for eviction were filed by the respondent on the ground that the petitioners were unauthorised occupants of vacant land. The suits were filed on 7-9-1971. In those suits, the trial went on and the defence of the petitioners was that they have prescribed title over the land by adverse possession and set up independent title in themselves over the same. The defence of the petitioners was not conceded to by the trial court, the appellate court and also this court in second appeal. Decrees for eviction were passed.. They have been confirmed b the petitioners taking up the matter further to the stage of the High Court. In the meantime, under the provisions of the Tamil Nadu Slum Areas (improvement and Clearance) Act, 1971, (Tamil Nadu Act 11 of 1971), a declaration was made under S. 3 of the said Act, declaring the suit property as a slum area. This is seen from Ex. P. 1. The respondent does not dispute that such a notification was made by the authorities under S. 3 (1) of the Act. The common case is that at no time before 1977 the execution petition was filed. The petitioners took up the position that the decrees are not executable having regard to certain prescriptions in S. 29 of the Act which would-lay an embargo on normal executability of decrees unless the decree-holder has obtained the permission in writing of the prescribed authority under the Act. The prescribed authority under the Act, means any authority or person authorized by the Government in this regard by a Notification. When the execution petitions were filed in 1977, the petitioner took up objection to the executability of the said decrees on the ground that S. 29 of Tamil Nadu Act 11 o 1971, is a bar without there being a previous permission in writing of the prescribe authority being made available to the respondent which permission alone would enable her to proceed with the execution of the decrees. The court below was of the view that there is no bar either expressly/or by necessary implication by reason of the provisions of the Act. Curiously enough, the court made a reference to S. 5 of the said Act, which has no relevance to the subject matter at all. In that view, it did not countenance the objection as to maintainability of the execution petitions without the written permission of the prescribed authority. It therefore dismissed the application filed by the petitioners, which means, that it allowed the execution of decrees to go on feeling aggrieved by the said order. The petitioners have come up in revisions.

Learned counsel for the petitioners referred to S. 29 appearing in Chap. VII dealing with protection of occupants in slum areas from, eviction, and in particular referred to S. 29 (1) (b) which reads as follows-

Proceedings for eviction of occupants not to be taken without permission of the prescribed authority-Not

With standing anything contained in any other law for the time being in force, no person shall, except with the previous permission in writing of the prescribed. Authority (b) where any decree or order is obtained in any suit or proceedings instituted before such commencement for the eviction of an occupant from any building or land in such area, execute such decree or order.'

Strong reliance is placed on the language of this sub-section of S. 29. The contention, therefore, is that unless the. Permission in writing by the prescribed authority is there, no decree of court which would enable a decree-holder to execute the said decree for possession could be so executed for it will be offending the express provision of law as set out above.

"In answer, Mr. Unnikrislinan learned counsel for the respondent, upon the ratio of a decision of our court reported in Varadappa Reddiar v. Tamil Nadu Slum Clearance Board, (1977) 2 Mad LJ (SN) 17. We do not have the judgment. Mohan J. was considering A case where a landholder obtained a decree for eviction, and when he sought to execute the decree with the assistance of the civil courts without the express permission given for the purpose by the prescribed authority, the occupant therein filed a writ petition questioning the right of the Ian holder to proceed in a civil court without reference to the express mandate under the Tamil Nadu Slum Areas (Improvement and Clearance) Act, 1971, and without following up the procedure prescribed therein. Mohan J. expressed the view that Ss. 5, 11 and 29 of the Act did not confer a cause of action in favour of the occupant, that they were merely enabling provisions or powers conferred upon the Board for the improve merit and clearance, of the alums and that under those Circumstances it was not open to the, petitioner therein to set at naught the valid decree of the civil court which was confirmed by the High Court by seeking an illusory protection under the- Act. Learned counsel for respondent is only entitled to rely upon the observations made by the learned judge in that decision. But S 29 (1) (b) in terms prohibits the execution of a decree of court obtained prior to the commencement of the Act for the eviction of an occupant from land in a slum area without the previous permission in writing of the prescribed authority. It would, therefore, follow that this embargo or prohibition would apply to decrees obtained after, the commencement of the Act and once a notification under S. 8 (1) is made under the Act, it appears to me that certain rights do flow from it which could be taken advantage of by the Occupant. This is of course a qualified right. If the landholder gets the permission in writing from the prescribed authority, the decree would be executable notwithstanding the fact that it relates to building or land in a slum area. But having regard to the broad opinion expressed by. Mohan, J. that the rights which an occupant, is said to have secured under the Act are merely illusory, I am unable to uphold and agree with the learned judge that the landlord in the alternative could. Also project a right, which is illusory, it appears from a that a legal right is given to the landholder to seek eviction, but he could do so only after he gets permission from the prescribed authority. Whether the decree is executable as such or not is a matter which has to be decided without reference to the dicta in Varadappa Reddiar v. Tamil Nadu Slum Clearance Board, (1977) 2 Mad LJ 17. As I am not in entire agreement with the teamed judge, the matter has to be placed before a Division Bench".

2. The respondent herein filed suits for eviction against the petitioners herein on 7-9-1971. The suits were resisted by the petitioners on various grounds, which am not necessary to set out at this stage. Suffice to say that all the defences pit forward by the petitioners were rejected by the trial court; appellate court, as also by this court in second appeal. This respondent herein, who had obtained decreees for eviction against the petitioners, thereafter filed execution petitions for taking delivery of possession-of the disputed mew from the petitioners. . One of the defences taken by the petitioners in those execution petitions filed by the respondent decree-holder was that as the area, which is the subject matter of the suit and from which they are sought to be ejected, had already been declared as slum area under a Notification issued under Section 3 of the Tamil Nadu Slum Areas (Improvement and Clearance) Act 1971, (hereinafter referred to as the 'Act'), the execution petition cannot be maintained unless permission has been obtained from the Slum Clearance Board as required under S. 29 of the said Act, and that the decrees obtained against them are not executable so long as the decree-holder had not obtained the permission of the prescribed authority as required under S. 29. The executing court relying on S. 5 (2) of the Act held that as the notification declaring the area to be a slum area has become unenforceable on the expiry of two years as contemplated by S. 5 (2), the embargo contained in Section 29 is no longer in operation and that therefore, the respondent decree-holder can maintain the execution petitions without any permission from the Slum Clearance Board. In that view, the executing court allowed the execution to proceed and directed delivery of possession in accordance with the decree obtained against, the petitioners. Aggrieved against the order of the executing court holding that Section 29 of the Act is not a bar to the execution in the absence of a written permission from the authorities, the petitioners have come before this court by way of these revision petitions.

3. The only question canvassed in these revision petitions by the petitioners is whether in the face of Sec. 29 of Act, 11 of 1971, the execution levied against them by the decree-holder can be ordered in the absence of a written permission from the prescribed authority permitting the decree-holder to execute the decree, and whether the view taken by the executing court that as the notification declaring the area to be a slum area had expired by efflux of time, S. 29 can no longer be applied to the facts of this case can legally be sustained.

4. In this case the executing court has sustained the execution petition without the written permission of the authority contemplated by S. 29 not on the ground that the petitioner cannot take advantage of S 29 not on the ground that the Notification declaring the area as slum had expired by efflux of time. The executing court has relied on S. 5 (2) for taking that view. There appears to be an obvious error in the approach made, by the executing court. It is under S. 3 a declaration is made. That a particular area is a slum area. No, time-limit has been provided either under S. 3 or under any provision of the Act limiting the duration for the currency of such a declaration. The executing court has proceeded on the basis that the notification referred to under Section 5 (2) is the notification issued under S. 3. This appears to be a clear misconception. Sub-see. (1) of Section 5 provides for a notification that no person shall erect any building in a slum area except with the previous permission of the prescribed authority and this is entirely a different notification. Sub-section (2) of S. 5 says that every such notification issued under sub-section (1) shall cease to have effect on the expiration of two years from the date thereof except as respect things done or omitted to be done before such cesser. The two years period referred to in sub-section (2) applies only to a notification issued under sub-sec. I) preventing the erection of any building in a slum area without permission, and it does not refer to any notification issued under S. 5 (39?) declaring a particular area as a slum area. Therefore, the Executing Court is in error in stating that the declaration declaring the area as slum area has ceased by efflux of time and, therefore, S. 29 cannot come in the way. In our view, the application of S. 29 cannot be avoided on the ground that two years time had elapsed since the issue of the notification declaring the area as a slum area.

5. The learned counsel appearing for the respondent, however, relies on the decision of Mohan, J. in Varadappa Reddiar v. Tamil Nadu Slum Clearance Board, (I977) 2 Mad LJ (SN) 17, and contends that even if the reasoning of the executing court is wrong, its conclusion can be sustained on the basis of the said decision. In that case, Mohan J. has taken the view on similar facts that no written permission is necessary from the Slum Clearance Board and that execution can be levied in respect of decree obtained earlier even without the permission con Contemplated under S. 29 of the Act. The reasoning pen by the learned judge for taking such a view is as follows---

"A careful reading of the various provisions of the Act would reveal that a person like the petitioner cannot claim the right in his favour since all the provisions merely empower the Slum Clearance Board to clear the slums for the improvement of the slums. The object of the Act is the proper improvement of the slums as they are likely to become a source of danger to public health and sanitation in the said area. This is clear from the preamble. Having regard to the above object, certain powers had to be vested in the Tamil Nadu Slum Clearance Board. That is why in Sec. 5 there is a restriction on building in slum, areas. That reads.

(1) The prescribed authority may, by notification, direct that no person shall erect any building in a slum area except with the previous permission in writing of the prescribed authority. They are merely enabling provisions or powers conferred upon the Board for the improvement and clearance of the slum. Under these circumstances, it is not open to the petitioner to set at naught the valid decree of the civil court which was confirmed by this court by seeking an illusory protection under this Act."

The extract from the judgment of the learned judge given above indicates that the learned Judge felt that the object of the Act was only to clear or improve the slum areas and not to confer any special right on the tenants or occupants in. A slum area, that Ss. 5, 11 and 29 of the Act did not confer any benefit or a cause of action in favour of an occupant they being merely enabling provisions empowering the Slum Clearance Board to clear the slum and improve the same and that, therefore, it is not open to the judgment debtors, who had suffered a decree for eviction, to set as naught those valid decrees by taking advantage of S. 29 of the Act. After a careful consideration of the various provisions with reference to the scheme and object of the Act, we are not inclined to agree with the view ex. Pressed by the learned judge. We do not see how it can be said that S. 29 will not come into play in cases where decrees for possession had been obtained from civil courts and those decrees are put in execution. Section 29 occurs in Ch. VII of the Act under the heading protection of occupants in slum areas from eviction. The marginal note of S. 29 is "proceedings for eviction of occupants not to be taken without permission of the prescribed authority." That section says that notwithstanding anything contained in any other law for the time being in force, no person shall, except with the previous permission in writing of the prescribed authority, where any decree or order is obtained in an suit or other proceedings instituted before such commencement for the eviction of the occupant from any building or land in a slum area, exercise such a decree or order. It also prohibits an owner of a land from instituting a suit for eviction of an occupant from any building or land from the slum area after the Commencement of the Act. Sub-section (2) of S. 29 provides for an application for obtaining the permission from the prescribed authority. Sub-section (3) deals with the manner of conducting of the enquiry by the prescribed authority on an application for permission to institute the suit or to execute. The decree obtained earlier. Sub-sec. (4), which throws considerable light on & aspect we are considering, is as follows:

"(4) In granting or refusing to grant permission under sub-sec. (3) the prescribed authority shall take into account the following factors, namely- (a) whether alternative accommodation within the means of the occupant would be available to him if he were evicted; (b) whether the eviction is in the interest of improvement and clearance of the slum area; (c) such other factors, if any, as may be prescribed".

6. A conjoint reading of all the subsections of S. 29 of the Act would clearly Indicate that the Legislature intends to impose a restriction on the owner of the land either executing the decree obtained earlier or instituting a suit for eviction against an occupant of slum area by imposing a pre-condition that the owner of the slum area should get the permission of- the requisite authority either for filing the suit for eviction or for executing the decree that had already been obtained. Section 29, in express terms, prohibits the owner of the slum area from instituting a suit for eviction or executing a decree obtained earlier against an occupant without such permission. One of the facts to be taken into account by the prescribed authority for granting the sanction under sub-sec. (4) is whether alternative accommodation within the means of the occupant would be available to him if he were evicted. This means to suggest that the Legislature wanted to safeguard the interests of the occupant by securing him an alternative accommodation within his means, if a suit for eviction or the execution of a decree for eviction is to be permitted. We are not in a position to say that S. 29 does not confer any benefit on the occupier or that the conferment of such a benefit is outside the scope and object of the Act or that the benefit conferred on the occupants under S. 29 is, in any way, illusory. The object of the Act cannot be gathered merely from the long title or the preamble of the Act. The object and purpose of the Act has to be gathered from the provisions of the Act as a whole and S. 29 being one of the provisions of the Act, the act of which, is to give protection to the occupants in slum areas from eviction cannot be overlooked or ignored in finding out the object of the Act. We are not inclined to agree with Mohan J. that the object of the Act was only to clear the slum areas and develop the slum areas, and that the protection of occupants from eviction will not come within the scheme of the Act.

7. In this case, it is not in dispute that no permission has been obtained from the competent authority under S. 29 of the Act by the respondent, the owner of the slum area. The eviction proceedings taken by him against the occupant, the petitioner herein, cannot, therefore, be sustained in view of the prohibition contained therein. The learned counsel appearing for the respondent would submit that he filed an application for permission as soon as he came to know of the existence of such a restriction as is contained in S. 29 but, the permission sought for was refused without any reason by the competent authority. Even assuming that the respondent applied for permission and the permission was wrongly refused, as is alleged by the learned counsel the matter could have been taken in appeal under S. 30 which says that any person aggrieved by an order of the prescribed authority refusing to grant the permission under sub-sec. (4) of S. 5 or under sub sec. (3) of S. 29 may, within any such time as may be prescribed, prefer an appeal to the Government and the decision of the Government on such an all shall be final. Admittedly, the respondent has not filed an appeal before the Government, under S. 30. We are not here concerned with the validity of the order of the competent authority refusing permission sought for by the respondent under Section 29. So long as there is no permission obtained in writing by the respondent, execution proceedings cannot be maintained in view of the prohibition contained S. 29.

8. The learned counsel appearing- for the respondent submits that the provisions of the Tamil Nadu Act XI of 1971, including S. 29 are constitutionally invalid. If that is so, it is always open to the respondent to challenge the validity of the said Act in appropriate proceedings. The learned counsel for t e respondent further submits that the decree obtained by the respondent against the petitioners are composite ones and even if the decree for eviction cannot be executed, the decree so far as it relates to means profits can be executed by the respondent. The question whether the decree could be executed for recovery of the means profits and costs or in any other respect will come up for consideration as and when the respondent files an execution petition seeking these reliefs. We make it clear that our decision will not prevent the executing court from entertaining the execution petition for other reliefs.

9. Hence the order of the lower court in this case directing the occupants, the petitioners herein, to deliver possession of the property including in the slum area, cannot be sustained in law and, therefore, it has to be set aside and it is accordingly set aside. It is, however, made clear that the respondent can levy execution of the decrees obtained by him after obtaining the requisite permission of the prescribed authority as required under S. 29. With these observations, both the civil revision petitions are allowed. No costs.

10. Revisions allowed.


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