PARTHASARATHY Vs. KUPPAMMAL

JUDGEMENT

(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.