Encroachment without authority and the discretionary nature of writ remedy.

1. This writ petition is filed by the petitioner seeking for a direction to the respondents to value the plot No.R-32, Tamil Nadu Housing Board, Kakkalur Bypass Road, Kakkalur, Tiruvallur, which was specifically allotted for construction of a Mosque and as a public purpose site.

2. When the writ petition came up on 23.07.2012, this court directed notice to be given to the Standing counsel for TNHB Mr.R.Jayaseelan. On notice from this court, the learned Standing Counsel produced a written instruction received from the Executive Engineer-cum-Administrative Officer, K.K.Nagar Division.

3. The case of the petitioner was that he is staunch Muslim. He and his brother Muslims used to worship under the temporary mosque situated in plot No.R-32, TNHB, Kakkalur Bypass Road, Kakkalur for many years. The Board had proposed K.K.Nagar Division in Kakkalur village. Under the said scheme, Plot No.R-32 was allotted for construction of mosque. One Firdouse Development Society was registered under the Tamil Nadu Societies Registration Act and was formed to construct a Mosque at Plot No.R-32 in K.K.Nagar division, Kakkalur. As there is no Mosque for the Muslim community in the nearby areas, such as Poonga Nagar, VM Nagar, Kakkalur, his community had put up a thatched roof in the site. The petitioner was a member of the society. Through the Right to Information Act, they have also found that the site was allotted for a religious purpose.

4. The TNHB in its auction notice issued during December, 2010, had proposed to auction commercial / school / public utility plots in the village. The second respondent had advertised for auction of the plot R-32 which was specifically allotted for construction of mosque, though auction notice dated 05.01.2011. On 05.01.2011, there was no bidder for the said site. As it was valued at the commercial rate, the people in that area cannot afford the said amount. The said property was not for business or for commercial purpose and it was earmarked for a religious purpose. The petitioner sent a legal notice through his counsel on 02.02.2012 to the second respondent. The second respondent had sent a reply dated 23.2.2012 stating that public auction would be advertised in the newspaper for the above said site and that interested persons can participate in the auction and bid for the site. The petitioner had sent a representation to fix the price of the site at the rate fixed for public purpose site. But there was no fruitful reply from the respondents. It was stated that the Muslim community had decided to purchase the property to construct a pucca mosque. It was also decided by everyone to contribute for the construction of the mosque. The Muslim people in and around the area are performing their prayers in the said property. But, the second respondent had valued the property which was allotted for religious purpose at commercial rates. Therefore, the respondents should be directed to value the property not at commercial rate. It was also stated that valuing the site at commercial price would amount to violation of Articles 25(1) and 26 of the Constitution.

5. In the written instructions obtained by the respondents, it was stated that the Housing Board had proposed S&S Scheme at Kakkalur to an extent of 117.13 acres of land. It was taken over from the Government after paying the land costs for the entire land. The layout was also approved by the CMDA. The residential plots were allotted to public by drawing lots and . The commercial, public purpose site, religious purpose site, school site will be allotted through sealed offer or by public auction. The commercial, public purpose site and school sites are allotted by open auction and sealed offer only. Plot No.R-32 was encroached by the petitioner and they had erected thatched shed. The Housing Board took steps to vacate the encroachers from the site with the help of the police on 26.08.2011, 13.09.2011, 22.09.2011, 23.11.2011 and 07.02.2012. Due to non avail