This second appeal has been filed by the defendant, animadverting upon the judgement and decree dated 27.9.2007 passed by the learned VII Additional Judge, City Civil Court, Chennai, in A.S.No.394 of 2007, confirming the judgement and decree dated 12.4.2007 passed by the learned II Assistant Judge, City Civil Court, Chennai, in O.S.No.1105 of 2001. For convenience sake, the parties are referred to here under according to their litigative status before the trial Court.
2. A summation and summarisation of the relevant facts, which are absolutely necessary and germane for the disposal of this second appeal, would run thus:
"The Respondent/plaintiff filed the suit O.S.No.1105 of 2001 as against the defendant, seeking mandatory injunction, so as to direct the defendant to demolish the wall on the Eastern side of plaintiff's house measuring 1= feet East to West and 10 feet North to South marked BEFG in the sketch at No.24, 'B' Block, 1st Street, Ezhil Nagar, Chennai-81 described in the Schedule B hereunder which is encroached by him."
(b) During enquiry, the trial Court framed the relevant issues. One Venkatesan was examined as P.W.1 and Exs.A1 to A.4 were marked. The defendant examined himself as D.W.1 and Ex.B1 was marked. Exs.C1 and C2 were marked as Court documents.
(c) Ultimately the trial Court decreed the suit, as against which, the defendant filed the A.S.No.394 of 2007, for nothing but to be dismissed by the first appellate Court, confirming the judgement and decree of the trial Court.
3. Being disconcerted and aggrieved by the judgements and decrees of both the Courts below, this second appeal has been focussed by the defendant on various grounds. My learned predecessor framed the following substantial questions of law at the time of admitting the second appeal.
"i) In a suit of mandatory injunction for removal of Superstructure of the defendant, without pleading the date of construction by the defendant in the plaint, whether the Court can place the onus of proving the date of construction of the Superstructure on the defendant?
ii) Can the plaintiff who has not pleaded material facts in the plaint succeed on the weakness of the defence of the defendant?
4. After hearing both sides for sometime, this Court suo-mottu framed the following additional substantial questions of law:
"Whether in view of Sections 29 and 65 of the Tamil Nadu Slum Clearance Board Act, the suit itself is maintainable?"
5. Heard the learned counsel appearing for both sides on the above questions of law.
6. Section 29 of the Tamil Nadu Slum Clearance Act is extracted hereunder:
"Section 29:Proceedings for eviction of occupants not to be taken without permission of the prescribed authority- (1) 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-
(a) institute, after the commencement of this Act any suit or proceeding for obtaining any decree or order for the eviction of an occupant from any building or land in such area; or
(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.
(2) Every person desiring to obtain the permission referred to in sub-section (1) shall make an application in writing to the prescribed authority in such form and containing such particulars as may be prescribed.
(3) On receipt of such application, the prescribed authority after giving an opportunity to the parties of being heard and after making such summary enquiry into the circumstances of the case as it thinks fit shall, by order in writing, either grant or refuse to grant such permission.
(4) In granting or refusing to grant permission under sub-section (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.
(5) Where the prescribed authority refuses to grant the permission, it shall record a brief statement of the reasons for such refusal and furnish a copy thereof to the applicant."
The above Section would contain the non-obstante clause to the effect that no suit shall be instituted after the commencement of the said Act, without the permission in writing of the prescribed authority concerned and the said provision had gone to the extent of mandating that even if any decree or order is obtained before the commencement of the said Act and decree was obtained for eviction, the same would not be executed without the previous permission in writing of the prescribed authority. As such, the very nature of the words used in the said Section would leave no doubt in the mind of the Court that the Civil Court, after the commencement of the Act, is not expected to entertain any suit without such permission.
7. Section 65 of the said Act would run thus:
"Section 65:Bar of jurisdiction of civil Courts. - Save as otherwise expressly provided in this Act, no civil court shall have jurisdiction in respect of any matter which the Government are, or the prescribed authority is, empowered by or under this Act, to determine and no injunction shall be granted by any court or other authority in respect of any action taken or to be taken in pursuance of any power conferred by or under this Act."
A plain reading of the above would display and demonstrate that it ousts the Civil Court's jurisdiction in respect of proceedings taken and orders passed by the authorities concerned.
8. Here a bare and plain perusal of the plaint and other relevant records would indicate and exemplify, display and evince that according to the plaintiff's case, he was allotted, as per Ex.A2-the Lease-cum-Sale agreement, dated 2.1.1995, the land measuring 20 feet X 30 feet at No.24, 'B' Block, 1st Street, Ezhil Nagar, Chennai-81 and that with the financial assistance of the Slum Clearance Board, a superstructure was constructed thereon by the plaintiff. However, the defendant encroached into the said plot to an extent of 1= feet East to West and 11 Feet South to North, which is described under 'B' Schedule in the plaint.
9. In my considered opinion, the very case of the plaintiff attracts Section 29 of the Tamil Nadu Slum Clearance Act. In fact, the plaintiff intends to evict from a portion of the 'A' Scheduled property, which is described as the 'B' Scheduled property, the defendant. It amounts to also attempting to evict the defendant from the property in the Slum area. The raison de etre' of the said provision is that in the slum area there should not be any illegal eviction. Even though the plaintiff states that the defendant encroached into a portion of her property and raised wall, nonetheless this also would come under the definition of the term 'eviction of an occupant'. An 'occupier' is defined under clause 2(g) of the Act. As such, a bare perusal of the same would reveal that even a person, who is liable to pay damages for use and occupation of any land or building, so to say a trespasser, comes within the meaning of the term 'occupier'.
10. It is quite obvious that without obtaining such permission, the suit was filed by the plaintiff and as such, the suit should not have been entertained. Accordingly, the additional substantial question of law is answered to the effect that the suit filed by the plaintiff was not maintainable.
11. It is a pathetic case in which without obtaining such permission, the plaintiff litigated all along. However, during the pendency of the suit, an Advocate Commissioner was appointed, who visited the suit property, measured it and located that the defendant encroached into the suit property. The trial Court also observed that objection was not filed to the Commissioner's report. The first appellate Court also confirmed the same. In such a case, there is absolutely no substantial question of law involved relating to the finding of fact arrived at by both the Courts below, based on appreciation of evidence, in giving the finding that the defendant is in illegal occupation of a portion of the suit property. However, in view of the fact that the suit was not properly instituted after obtaining permission, necessarily this Court has to interfere in second appeal, in view of having decided the additional substantial question of law that the suit is not maintainable. It is an example as to how even though the plaintiff having got a good case, failed before the Courts below because of the non-compliance with the obtention of mandatory prior permission, before instituting the suit. Such Sections 29 and 65 of the Act cannot simply be taken as pettifogging bureaucratic procedure, but those sections 29 and 65 are based on sound principles of law.
12. This is a case in which there is nothing to highlight that the plaintiff has become the absolute owner of the suit property and in such a case, she could have very well approached the authority for removal of the encroachment made by the defendant. Accordingly this second appeal is allowed setting aside the judgements and decrees of the trial Courts below and the original suit is dismissed with a direction that the plaintiff is at liberty to approach the appropriate authority under the Slum Clearance Board within a period of one month from the date of receipt of copy of this order, whereupon within a period of three months thereat, the authority concerned, without questioning about its own jurisdiction to interfere with the matter, shall take up the matter and after hearing both sides, as per Rules, dispose of the matter, as per law. No costs. Consequently, connected miscellaneous petition is closed.