Madras High Court
A.Rajendran vs The Chairman on 29 June, 2021
W.A.No.690 of 2011
and M.P.Nos.1 & 2 of 2011
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 29.06.2021
CORAM
THE HONOURABLE MR.JUSTICE T.RAJA
and
THE HONOURABLE MR.JUSTICE V.SIVAGNANAM
W.A.No.690 of 2011
and
M.P.Nos.1 & 2 of 2011
A.Rajendran
... Appellant
-vs-
1.The Chairman,
Tamil Nadu Slum Clearance Board,
Kamaraj Salai,
Chennai-600 005
2.The Tamil Nadu Slum Clearance Board,
Rep. by its Executive Engineer,
Division II, kamaraj Salai,
Chennai-600 005
3. Subbiah
... Respondents
https://www.mhc.tn.gov.in/judis/
W.A.No.690 of 2011
and M.P.Nos.1 & 2 of 2011
Prayer: Writ appeal filed under Clause 15 of the Letters Patent praying to
set aside the final orders passed in the above W.P.No.6581 of 2002 dated
23.11.2010.
For Appellant : Mr.T.S.Rajamohan
For R1 & R2 : Mr.M/s.R.Sivakumar
TNSCB - Standing counsel
For R3 : Mr.M.Adeeb Mohammed
Judgment
(Judgment of the Court was made by V.SIVAGNANAM)
This Writ Appeal has been preferred against the order dated
23.11.2010 passed in W.P.No.6581 of 2002 seeking to set aside the order of
the learned Single Judge of this Court.
2.The facts leading to the filing of the Writ appeal are stated below:
2.1.The property comprised in Plot No.93, door No.12, 2nd cross
kannagi street, Nehru nagar, Guindy, Chennai, having an extent of 126.70
sq.m was alloted jointly in favour of the appellant and his wife by the first
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W.A.No.690 of 2011
and M.P.Nos.1 & 2 of 2011
respondent vide proceedings No.961/143/92/Ni.Po.II dated May 1992. He
paid the value fixed to the plot at Rs.11,403/-. He was further directed to
pay the said value in 20 equal installments at Rs.113/- commencing from
01.06.1992. Thus, he cleared the entire amount as on 04.05.2000 vide
proceedings Na.Ka.668/2000/F/EA.7, dated 12.05.2000 and the Revenue
Officer issued ''No Due Certificate'' for construction and thereby he
constructed a building. Thereafter, a proceeding was issued by the first
respondent in Se.Mu.Ka.No.29909/E4/2000 dated 02.04.2001 thereby
fixing the final order for allotment whereby the first respondent unilaterally
reduced the area of original allotment from 126.70 sq.m to 93.0 sq.m.
Aggrieved by this order, he challenged the proceedings in W.P.No.6581 of
2002 in the Writ Petition.
2.2.The respondents contended that in the original layout, the
measurement as per the length and breadth of the appellant's possession
alone was actually mentioned as the appellant's as on date. However, while
mentioning the total extent in the original layout which was wrongly
mentioned as 126.70 sq.m instead of 93.0 sq.m and on the personal
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W.A.No.690 of 2011
and M.P.Nos.1 & 2 of 2011
inspection made by the Officials, it was found that the appellant was in
possession of 93.0 sq. m alone. It is contrary to the measurement shown in
the original layout for the plot No.93. However, the appellant was alloted to
have the possession of 93.0 sq.m. by rectifying the original layout and
revised proceedings were issued in the Board reference dated 02.04.2001.
Considering the argument of the counsel for the parties based on records,
the learned Single Judge found that the appellant is in possession what he
had actually possessed and his possession was not disturbed. Therefore, the
appellant had no grievance and the excess amount collected from the
appellant for the allotment to the extent of 126.70 sq.m was ordered to
return back to the appellant with 12% annual interest. With this direction,
the Writ Petition was ordered. Aggrieved by this order, the appellant filed
this Writ Appeal.
3.Learned counsel for the appellant submitted that the learned Single
Judge failed to appreciate the fact that the appellant is in possession to the
extent of 126.70 sq.m. While so, without inspecting the property with the
influence of 3rd respondent, the respondents 1 and 2 have altered the
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W.A.No.690 of 2011
and M.P.Nos.1 & 2 of 2011
original allotment and granted patta to 3rd respondent and has modified the
original allotment without any reason only to help the 3rd respondent.
Subsequently, patta has been granted in favour of the 3rd respondent and
altered the original allotment. The appellant is in actual possession of entire
area on 126.70 sq.m and constructed the superstructure and reiterated other
grounds raised in the grounds of appeal and thus pleaded to allow the Writ
Appeal.
4.Learned counsel for the respondents submitted that the appellant
was in possession of only 93.0 sq.m. It is confirmed during the personal
inspection. But while typing the original allotment, it was mistakenly typed
as 126.70 sq.m. Thereafter, that mistake was rectified and proceeding has
been issued and the actual possession of the appellant was not disturbed and
therefore, the appellant may not have any grievance. He took the advantage
of typographical error in the original allotment order, when he was alloted
126.70 sq.m which is not in his possession. The learned Single Judge rightly
observed and dismissed the prayer in that regard and only directed to the
appellant to return the excess amount collected from the appellant with 12%
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W.A.No.690 of 2011
and M.P.Nos.1 & 2 of 2011
interest and submitted that there is no reason to interfere with the order of
the learned Single Judge and pleaded to dismiss the appeal.
5.We have considered the submissions made by the learned counsel
for both the parties and perused the materials available on record.
6.Admitted fact of the case is that the appellant and his wife viz.,
Amudha were alloted the property comprised in Plot No.93, door No.12,
2nd cross kannagi street, Nehru nagar, Guindy, Chennai having extent of
126.70 sq.m by the first respondent's proceeding No.961/143/92/Ni.Po.II
dated May 1992. Subsequently, the respondents found the typographical
error in the original allotment and rectified the same by issuing the
impugned proceedings dated 02.04.2001 and also modified the allotment
area from 126.70 sq.m to 93.0 sq.m and the respondent issued an order
rightly to that effect.
7.While so, the contention of the appellant is that he was in actual
possession of 126.70 sq.m and based on that possession, the original
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W.A.No.690 of 2011
and M.P.Nos.1 & 2 of 2011
allotment order was issued. Subsequently, in order to help the 3rd
respondent, the Revenue Officer passed the impugned modification order
and granted patta to the 3rd respondent and allotted plot No.93.0 sq.m to
him.
8. We have carefully considered the materials available on record and
the layout plan and patta issued to 3rd respondent and the appellant. We
find that the appellant is attempting to maintain an untenable position that
he is in possession of 126.70 sq.m. This contention stands exposed as false
by his own affidavit filed in the Writ Petition and other materials on record.
9.In the Writ Petition affidavit filed by the appellant in para No.6 he
contended that taking advantage of the impugned modification order dated
02.04.2001, 3rd respondent has encroached the property and put up the
construction reads as follows:
''6. I submit that, taking advantage of the Impunged
order dt. 2.4.2001. The adjacent owner one Subbiah-the
3rd respondent herein is proceeding to encroach into my
https://www.mhc.tn.gov.in/judis/
W.A.No.690 of 2011
and M.P.Nos.1 & 2 of 2011
property and put up construction. I earnestly believe that
the respondents 1 & 2 are active hand in glow with the
3rd respondent and in fact the very Impugned order was
passed to facilitate the adjacent owner Subbiah to
encroach into my property. As stated supra, having paid
the entire consideration, I am entitled for 126.70 sq.meter
as per the order of allotment in proceedings
961/143/92/Ni.Po.II/ dated May, 1992.''
Contrary to the above affidavit para No.6 in Writ Appeal in the
affidavit para No.19 he contented that he is in possession of 126.70 sq.mt.,
Para No.19 of the Writ Appeal runs as follows:
19.It is submitted that even today the area allotted in
favour of the appellant having an extent of 126.70 sq.m is
in occupation of the appellant. Without inspecting the
property and just because the 3rd respondent is an
influential person, the respondents 1 & 2 are acting
colourfully and discriminatorily against the appellant
besides misleads this Hon'ble Court.''
10. Further a perusal of the allotment order issued in favour of the 3rd
respondent and the lay out plan, it is evident that the allotment to the 3rd
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W.A.No.690 of 2011
and M.P.Nos.1 & 2 of 2011
respondent was ordered as per the proceedings RC.961/A5/92 dated March,
1994. Further, except the allegation of the appellant that he was in
possession of 126.70 sq.m he had not produced any evidence to show his
possession to the extent of 126.70 sq.m. It clearly evidenced the fact that the
appellant is attempting to maintain untenable position, as though he is in
possession of 126.70 sq.m. The allotment was subsequently, unilaterally
modified by the respondents 1 & 2. These arguments are not based on
evidence, admittedly he paid excess amount to the extent of 126.70 sq.m.
Therefore, the learned Single Judge rightly ordered to refund that excess
amount with 12% annual interest. In the absence of any material in support
of the appellant's contention, we find no merit in the Writ Appeal and the
order of the learned Single Judge is in order.
In the result, this Writ Appeal stands dismissed. No Costs.
Consequently, connected miscellaneous petitions are closed.
(T.R.J.,) (V.S.G.J.,)
29.06.2021
vsn
https://www.mhc.tn.gov.in/judis/
W.A.No.690 of 2011
and M.P.Nos.1 & 2 of 2011
T.RAJA, J.
and
V.SIVAGNANAM, J.
vsn
To
1.The Chairman,
Tamil Nadu Slum Clearance Board,
Kamaraj Salai,
Chennai-600 005
2.The Executive Engineer,
The Tamil Nadu Slum Clearance Board,
Division II, kamaraj Salai,
Chennai-600 005
W.A.No.690 of 2011
and
M.P.Nos.1 & 2 of 2011
29.06.2021
https://www.mhc.tn.gov.in/judis/
