Varadan and Another vs M. Subbulakshmi Ammal

Abdul Hadi, J.—The civil miscellaneous second appeal is against the decree dated 19-8-1989 in A.S. 721 of 1988 on the file of the 6th

Addl. Judge, City Civil Court, Madras, confirming the order dated 21-1-1986 in E.P.No.2026 of 1983 in O.S.1633 of 1968 on the file of the

10th Asst. Judge, City Civil Court, Madras. The C.M.S.A. is filed by the obstructors 5 and 6 against the decree holder-respondent, who secured

the decree for possession as early as 31-10-1971. It arises out of E.P.2026 of 1983 filed by the respondent decree holder for removal of

obstruction by the obstructors 1 to 8. Both the courts below have concurrently held that the obstruction is unlawful and ordered removal. In the

C.M.S.A. filed by the obstructors 5 and 6, a new ground, which was not raised in the courts below has been raised, viz, that the petitioners cannot

be evicted from the suit property without obtaining prior permission as required in S. 29 of the Tamil Nadu Slum (Improvements and Clearance)

Act 1971. This has been raised on the ground that T.S. 4800/2, a part of which is the suit property was declared as a slum area under S. 3 of the

said Act as per the the relevant notification. As per the relevant notification, the suit property comes within the ''slum area'' under the said Act and

S.29(1)(b) runs as follows:-

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......

(b) where any decree or order is obtained in any suit or proceeding instituted before such commencement for the eviction of an occupant from any

building or land in such area, execute such decree or order.

Further, the learned counsel for the appellants very much relied on the decision in Parthasarathi v. Kuppammal 93 L.W. 143 (D.B.)= 1980 1

M.L.J. 83 (D.B.). The learned Judges who decided the said case observed:-

A conjoint reading of all the sub-sections of S.29 of the Act would clearly indicate that the Legislature intended 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 a 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. S.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.

The learned Judges farther concluded by saying as follows--

So long as there is no permission obtained in writing by the respondent, execution proceedings cannot be maintained in view of the prohibition

contained in S.29.

In the case referred to in the above said decision the short facts are as follows:- The suits for eviction were filed on 7-9-1971, by the respondent

therein on the ground that the petitioners were unauthorised occupants of the vacant land. In those suits, the defence of the petitioners was that they

have prescribed title over the land by adverse possession. They set up independent title in themselves over the same. But, the said defence was

rejected by all the three courts, including the High Court in the second appeal, which resulted in the decree for possession in favour of the

respondent therein. In the meanwhile, under the provisions of the above said Slum Areas Act, a declaration was made under S.3 of the said Act,

declaring the suit property therein as slum area. Thereafter the respondent filed in 1977, execution petition for taking possession from the

petitioners therein. Then, the petitioners took up for the first time, a new defence, viz, that the decree was not executable on the ground of S.29 of

the above said Act, the written permission mentioned therein having not been obtained by the respondent.

Only in this context, the Bench of this Court held in the above said case that the above said decree was not executable in view of S.29, the

above said written permission having not been obtained. The facts of the above said case and the ruling therein would squarely apply to the facts of

the present case also. No doubt, the learned counsel for the respondent herein submitted that the above said decision would not apply to the

present case since in the above said case protection under S.29 was claimed by the judgment debtors while such a protection was claimed in the

present case by the obstructors who are mere trespassers. But, this difference has no significance at all. In the above said case, the judgment

debtors also were only trespassers or unauthorised occupants, who set up title by adverse possession in themselves. Here too, the obstructors are

only persons, making identically the same claim, they too being trespassers. The learned counsel for the respondents no doubt also contended that

the word ''occupant'' used in S.29(1) (b) of the Act should be interpreted to mean only lawful occupant and not trespassers like the appellants.

But, while a Division Bench of this Court has not given such a meaning to the said word appearing in S.29(1) (a) of the above said Act, and has

applied the said section even to a trespasser or an unlawful occupant, I am bound by the said Division Bench decision. No doubt, instead of the

term ''occupant'' the term ''tenant'' was there prior to the amendment made by Act 32 of 1973 to the said S.29. When the Legislature has chosen

to make such an amendment and to give protection to all occupants and not merely tenants and the Division Bench of this Court has applied the

term ''occupant'' even to a trespasser, in the above said decision, I have no option to follow a different course other than what the Division Bench

has adopted.

No doubt, the learned counsel for the respondent brought to my notice the decision in Chinnammal v. Natarajan Udayar & others 1989

T.L.N.J. 322. That case arose under the Tamil Nadu Occupants of Kudiyiruppu (Conferment of Ownership) Act 1971. The petitioner therein was

residing in the site in question, who earlier denied the title of the respondent (who claimed to be his landlord) and claimed ownership in himself in

the civil suit against him by the respondent. He failed in the said civil suit at the second appellate stage. Then he filed a petition under the above said

Act claiming to be an agricultural labourer in possession of the property on the crucial date and sought for the benefit under the Act. S.26 of the

said Act provides that the said Act shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in

force, or any custom, usage, or contract or decree or order of a court or other authority. In the writ petition arising put of the above said petition

under the said Act, the learned single Judge of this Court held that despite the said S.26, the said petitioner was not entitled to claim benefits under

the said Act, in view of estoppel by his conduct. In other words, the learned Judge held that the petitioner therein could not be allowed to change

the case completely and claim as a tenant or licensee, contrary to his earlier claim as owner in the civil suit. The learned Judge no doubt observed.

''It is true that there cannot be any estoppel against statute, but this is a case of estopped by conduct.''

But, I think I need not go into the correctness of this view of the learned single Judge of this Court in the face of the above referred to Division

Bench judgment of this Court holding differently, under the above said S. 29 of the Tamil Nadu Slum Area Act itself almost in a similar factual

situation as in the above said case, dealt with by the learned single Judge. As I am bound by the abovesaid Division Bench decision, which is a

direct decision on the point in issue in the present case, I follow the said decision. The argument of the learned counsel for the respondent based on

a similar Central enactment, viz, the Slum Areas (Improvement and Clearance) Act, 1956 and the decision reported in Punnuram v. Chiranjilal

Gupta AIR 1982 Del 431 (F.B.), cannot be accepted in the present case, particularly because the word ''tenant'' is used in the corresponding S.

19 of the Act instead of the word ''occupant'' as is used in S.29 of the above said Tamil Nadu Act. However. I may also point out that it observed

''an occupier may be trespasser, licencee or tenant'' (emphasise is mine). For all these reasons this civil miscellaneous second appeal is allowed and

the concurrent order of the courts below is set aside. The execution court may give reasonable time for the decree holder to apply for and get the

written permission contemplated under S. 29 of the abovesaid Act and produce the same before it. Thereafter the execution court may pass

suitable orders on the execution petition, depending on the production or non-production of the above said permission. No costs.