Madras High Court
Mrs.Kamalam vs Mrs.Punithavalli on 22 June, 2022
W.A.Nos.615/2015 & 3448/19
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON : 17.03.2022
DATE OF DECISION : 22.06.2022
CORAM:
THE HON'BLE MR. JUSTICE T.RAJA
AND
THE HONOURABLE MR.JUSTICE SATHI KUMAR SUKUMARA KURUP
W.A.Nos.615 of 2015 and 3448 of 2019
Mrs.Kamalam .. Appellant in both appeals
Vs
1.Mrs.Punithavalli
2.The Chairman,
Tamil Nadu Slum Clearance Board,
No.5, Kamarajar Salai,
Chennai – 5.
3.The Executive Engineer,
Tamil Nadu Slum Clearance Board,
Division No.III,
Vyasarpadi, Chennai – 39.
4.The Estate Officer-III,
Tamil Nadu Slum Clearance Board,
Vyasarpadi, Chennai – 39. .. Respondents in both appeals
Common Prayer : Writ Appeals have been filed under Section 15 of Letter of
Patent against the common order passed by the learned Single Judge in
W.P.Nos.79 of 2004 and 6103 of 1999, dated 03.02.2015.
https://www.mhc.tn.gov.in/judis
W.A.Nos.615/2015 & 3448/19
For Appellant : Mr.OM.Prakash, Senior Counsel
for Mr.R.Manickavel
For R1 : Mr.S.Rajendrakumar
For R2 to R4 : Mr.R.Sivakumar
COMMON JUDGMENT
Mrs.Kamalam/appellant herein is the fourth respondent in W.P.No.79 of
2004. Mrs.Punithavalli/first respondent herein is the writ petitioner in both writ
petitions.
2. W.P.No.6103 of 1999 was filed seeking for issuance of a writ of
mandamus to direct the respondents 2 and 3/Slum Clearance Board to execute a
Sale Deed in her favour. W.P.No.79 of 2004 was filed challenging the
proceedings dated 23.06.2003 made in Se.Mu.Ka.No.6431/E3/03 of the Chairman,
Tamil Nadu Slum Clearance Board. Learned Single, by the impugned common
order dated 03.02.2015, allowed both the writ petitions. Aggrieved by the same,
Mrs.Kamalam has filed these two writ appeals.
3. It is submitted by the learned Senior counsel for the appellant that the
Tamil Nadu Slum Clearance Board has allotted Plot No.173, Second Cross Street,
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W.A.Nos.615/2015 & 3448/19
Dr.Ambedkar Nagar, Kolathur, Chennai – 9, comprised in Old S.No.53/1, now
R.S.No.11612(part) of Kolathur Village, measuring an extent of 40.5 sq.mtrs.
under an allotment order dated 30.05.1996 to the appellant. Pursuant to the
allotment, the said plot was handed over to the appellant, who, in turn, entered
into a lease-cum-sale agreement dated 10.05.1996 with the first respondent. It is
further submitted that after the full payment was made, the Slum Clearance
Board has also issued No Objection Certificate to the appellant for Metro Water
and Drainage Connection to mortgage the said plot with any financial institution.
Thereafter, she sought permission for construction of a residential house and
commenced levelling the ground for laying a foundation. Whileso, on
25.12.2003, the first respondent's husband S.R.Hari alias Kothandaraman, with
the help of labourers, was digging the plot allotted to the appellant to put up
column. Thereafter, the appellant and her husband immediately rushed to the
place in question and strongly objected the unauthorized entry of the first
respondent and digging the earth and thereby, a police complaint was also
lodged in I.P.No.337/03 on the file of Rajamangalam Police Station. As the issue
is civil in nature, the Inspector of Police advised both parties to approach the
Civil Court for appropriate relief. Therefore, the appellant also filed a civil suit in
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W.A.Nos.615/2015 & 3448/19
O.S.No.313 of 2004 on the file of XIV Assistant Judge, City Civil Court, Chennai,
seeking for permanent injunction restraining the first respondent from
interfering with her peaceful possession and enjoyment of the property in
question. It is further submitted that the said suit was dismissed by the trial
Court on 01.04.2022, after contest.
4. It is further argued that the Tamil Nadu Slum Clearance Board, on
verifying the records, found certain mistakes and therefore, vide proceedings
dated 23.06.2003, it has revised the extent of the plot allotted to the first
respondent in Kannagi Nagar from 37.50 sq.mtrs. to 47 sq.mtrs. It is further
argued that if the extent is 87.50 sq.mtrs. in Plot No.144 allotted to the first
respondent, then it is inclusive of 40.50 sq.mtrs. allotted to the appellant on the
rear side of Plot No.144. The plot allotted to the first respondent is in Kannagi
Nagar Scheme whereas the plot earlier allotted to the first respondent is under
Dr.Ambedkar Nagar Scheme which was approved by the CMDA.
5. It is further contended that the Board has committed a mistake while
making the allotment to the first respondent herein and therefore, the said
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W.A.Nos.615/2015 & 3448/19
mistake was subsequently rectified by order dated 23.06.2003 as stated above.
Aggrieved by the same, the writ petitioner/first respondent herein has filed
W.P.No.79 of 2004 challenging the rectification order dated 23.06.2003, that too
without impleading the appellant herein in the said writ petition. Taking
advantage of the difference in the extent of land, the first respondent herein has
been attempting to encroach the plot allotted to the appellant.. It is further
argued that as per the direction of this Court, the Managing Director, Tamil Nadu
Slum Clearance Board, held an enquiry and gave personal hearing to both
parties. Subsequently, the Managing Director filed his report dated 22.11.2013, in
which, the name of the appellant herein was found place for occupation of Plot
No.173. As per the layout approved by the CMDA, extent of Plot No.144 is only
47 sq.mtrs., however, for Plot No.144, the authorities have wrongly alloted 87.50
sq.mtrs. including 40.5 sq.mtrs. of Plot No.173 of Ambedkar Nagar Scheme
allotted to the appellant. Thus, in view of such difference in the extent of land,
after getting a consent from the first respondent herein for reducing the extent of
land, revised order was passed vide proceedings dated 23.06.2003, however, this
has been wrongly challenged by the first respondent. It is argued that on
12.05.2003, the Tamil Nadu Slum Clearance Board have conducted an enquiry
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W.A.Nos.615/2015 & 3448/19
and in the enquiry, the first respondent has given written undertaking and
declaration that she would accept the difference in the extent of the land and that
she has no objection in allotting the remaining extent of 40 sq.mtrs. to Ambedkar
Nagar Scheme, hence, based on her written undertaking/declaration, revised
order has been passed on 23.06.2003. However, these crucial aspects have been
completely overlooked by the learned Single Judge while allowing the writ
petitions. Hence, the impugned common order passed by the learned Single
Judge is liable to go.
6. Heard the learned Senior counsel appearing for the appellant and the
learned counsels appearing for the respondents.
7. In the grounds of appeal, the appellant averred that on the basis of the
direction of this Court to the Managing Director of Tamil Nadu Slum Clearance
Board, an enquiry was held and an opportunity of personal hearing was afforded
to both parties. Thereupon, after completion of the enquiry, a report dated
22.11.2013 was filed, in which, it is reported that for Plot No.173, the name of the
appellant herein was found place, but, as per the layout approved by the CMDA,
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W.A.Nos.615/2015 & 3448/19
the extent of Plot No.144 is only 47 sq.mtrs., however, for Plot No.144, the
authorities have wrongly mentioned the extent of the land as 87.50 sq.mtrs.,
including 40.5 sq.mtrs. of Plot No.173 of Ambedkar Nagar Scheme allotted to the
appellant. Thus, in view of such difference in the extent of land, it is averred in
the grounds of appeal that after getting a consent declaration from the first
respondent herein for reducing the extent of land, revised order has been passed
on 23.06.2003. But, such consent declaration given by the first respondent has not
been placed before us.
8. Secondly, a written undertaking/declaration said to have been given by
the first respondent accepting the difference in the extent of the allotment and
giving no objection for allotment of the remaining extent of 40 sq.mtrs. to
Dr.Ambedkar Nagar Scheme also has not been filed. These two factual aspects
have not been considered/looked into by the learned Single Judge. Therefore, on
these two counts, the matter is remanded back to the learned Single Judge and
both parties are directed to file the aforesaid two documents. On production of
such documents, learned Single Judge is directed to pass orders on merits and in
accordance with law. The writ appeals stand disposed of with the above
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W.A.Nos.615/2015 & 3448/19
observations and directions. No Costs.
(T.R., J.) (S.S.K., J.)
22.06.2022
rkm
Index:yes
speaking
T.RAJA, J.
and
SATHI KUMAR SUKUMARA KURUP, J.
rkm
To
1.The Chairman,
Tamil Nadu Slum Clearance Board,
No.5, Kamarajar Salai,
Chennai – 5.
2.The Executive Engineer,
Tamil Nadu Slum Clearance Board,
Division No.III,
Vyasarpadi, Chennai – 39.
3.The Estate Officer-III,
Tamil Nadu Slum Clearance Board,
Vyasarpadi, Chennai – 39.
https://www.mhc.tn.gov.in/judis
W.A.Nos.615/2015 & 3448/19
W.A.Nos.615 of
2015 and 3448 of 2019
22.06.2022
https://www.mhc.tn.gov.in/judis
