V. Muthuswamy and Others vs The Chairman, Tamil Nadu Slum Clearance Board

Bakthavatsalam, J.—The petitioners have been allotted various residential houses in Subedar Garden Scheme by the respondent. It is not

disputed that they have been paying rent regularly to the respondent. It seems on 14-10-1983 the respondent has issued the impugned notice to

the petitioners to remove the encroachment in the respective buildings failing which allotment will be cancelled and the alleged encroachment will be

removed. Aggrieved by this order petitioners have come before this Court praying to issue a writ of Certiorari to quash the impugned order dated

14-10-1988.

Notice of motion was ordered by Sivasubramaniam, J., on 9-11-1988.

Writ petition is admitted.

The Respondent-Board has filed a counter affidavit.

By consent of parties the main writ petition itself is taken up for disposal.

Learned Counsel for the petitioner contends that the impugned notice has been issued without following the provisions of the Tamilnadu Slum

Areas (Improvement and Clearance) Act, 1971 (Tamil Nadu Act 11 of 1971) (hereinafter referred to as ''the Act''). The learned Counsel for the

petitioner contends that u/s 60 of the Act, the power of demolition is given to the Board under certain circumstances. Under that provision, the

authorities are empowered to demolish a building if it is built or has been completed in contravention of the provisions of the Act after giving time to

the owner not exceeding 60 days, that too the owners should be directed to demolish the building and if they fail to do so the prescribed authority

may itself cause the building to be demolished and subject to the provisions of Section 61 of the said Act. There is a proviso to the section which

states that before making an order under this section, the prescribed authority shall call upon the owner to show cause why the order should not be

made. It is the contention of the petitioner that no such opportunity has been given and the impugned notice is invalid in law. This argument is

countered by the learned Counsel for the Board stating that there is a provision in Section.59 of the Act giving a right of appeal to the petitioners

and the writ petition is to be dismissed on that ground of existence of alternative remedy. The learned Counsel appearing for the respondent-Board

further contends that since there are lot of complaints by slum dwellers in that area that the petitioners has put up various constructions such as

shop, etc., action has been taken and the impugned notice has been issued.

A careful scrutiny of the provisions of the Act shows that the impugned notice cannot stand. If the Board wants to demolish the buildings or

remove the encroachment, they have to resort to proceedings laid down u/s 60 of the Act. Admittedly it has not been done. Even a cursory

reading of the impugned notice would show that it has been sent without looking into the provisions of the Act. I am not inclined to agree with the

learned Counsel appearing for the respondent-Board that right of appeal is a bar to the maintainability of the writ petition. It is well-settled that

existence of alternate remedy cannot be a bar to entertain a writ petition, especially in my view when poor citizens are threatened by the notice of

demolition of their tenements. Since I am of the view that the impugned notice has to be quashed, the writ petition stands allowed. However, I will

make it clear that it is open to the Board to give proper opportunity to the petitioner according to the provisions of the Act and take action

according to law. No costs.