Punithavalli vs The Chairman, Tamil Nadu Slum Clearance Board and Others

K.B.K. Vasuki, J—W.P. No. 6103 of 1999 filed to issue a writ of Mandamus directing the Tamil Nadu Slum Clearance Board represented by the Estate Officer to execute a sale deed in favour of the petitioner.

W.P. No. 79 of 2004 filed to issue a writ of certiorari calling for the records in respect of the impugned order dated 23.6.2003 made in Se.Mu.Ka. No. 6431/E3/03 of the Chairman, Tamil Nadu Slum Clearance Board and quash the same.

One Punithavalli has filed the above two writ petitions. The petitioner occupied a portion of the property in S. No. 11 of Koalthur village, which is an abandoned tank viz., Kolathur Eri. She occupied 87.5 sq.mts. of land in or about 1985 and erected a hut. There are many such occupations and that area became a colony of huts. She was served with "B" memo. for such occupation of Government land.

The Government floated a Scheme with the help of the World Bank to replace the huts with proper infrastructure for the betterment of the people in occupation. Various colonies were formed and they are differently named.

The Officials of the Slum Clearance Board measured the area, in occupation of each occupant, plotted the same and allotments were made to the individual members, who were in occupation. The portion, under the occupation of the petitioner, was allotted to her and it was situated in Kannagi Nagar. The respondents found that she was in occupation of 87.5 sq.mtrs., which includes 6.5 mtrs. north-south on the west, 6 mtrs. north-south on the east, 15 mtrs. east-west on the north and 13 mtrs. east-west on the south. This plot was numbered as 144 Kannagi Nagar with specific boundaries.

The petitioner had also erected stone pillars and fenced the property. The allotment was made by proceeding dated 8.9.1995. The petitioner was directed to pay a total sum of Rs. 6,363/- towards the value of the land. The petitioner also paid the said amount by way of monthly installments. By an agreement dated 1.9.1995, the respondent admitted that the petitioner is in possession and also improved plot No. 144 and agreed to convey the property. However, there is no reference about the plot number, survey number and the measurements in the agreement. When approached, the respondents stated that according to the plan, the land will be registered.

The petitioner also approached the respondents to execute the sale deed. The respondents issued "No objection Certificate" to obtain loan from the Nationalised Bank and also to obtain electricity, water and sewerage connection. However, without a registered document of title in favour of the petitioner, the petitioner was unable to proceed further.

In spite of several representations, the respondents are not registering the document. Therefore, the present writ petition No. 6103 of 1999 is filed seeking for the above mentioned relief.

Pending writ petition, the petitioner also filed a writ petition in WP MP No. 8810 of 1999 for an injunction and this court, by order dated 4.9.2003, granted an injunction restraining the respondent not to interfere with the possession of the petitioner.

However, the respondents sent a communication stating that there is a difference between the allotted area and the approved sketch of the Scheme and thereby reduced the area to 47 sq.mtrs. and fixed the sale consideration of Rs. 3,525/-. Finding that the said proceeding is arbitrary and the respondents cannot revise the allotment after the lapse of eight years, the petitioner is constrained to file a writ petition in W.P. No. 79 of 2004 to quash the proceedings.

The respondents filed counter affidavit inter-alia stating as follows:

Kannagi Nagar Slum in Kolathur was taken under TNUDP Scheme. Survey No. 11 of Kolathur village was classified as "Eri Vulavayal" and the lay out has been approved by CMDA. However, during the survey, it was found difficult to measure every plot, as there was water stagnation. A revised lay out was prepared and sent to CMDA for approval. The area actually occupied by the petitioner was only 40.81 sq.mtr. However, by mistake, it was measured as 87.5 sq.mtr. in the initial stage.

The revised lay out, after measurement, would show that the petitioner is in occupation of the plot for extent of 40.81 sq.mtr. The adjacent plot of 40.50 sq.mtr. is covered in another scheme named "Dr. Ambedkar Nagar Scheme". One Tmt. Kamalam was allotted the said plot. Therefore, the respondents clarified and issued the impugned proceedings, which is valid in law and there is no illegality.

A cursory perusal of the records would show that a notice under Sec. 5 of the Tamil Nadu Act III/1905 was issued to the petitioner for the occupation of the property belonging to the Government without prior permission. She was found in possession of 2 cents of land. Under a Scheme to convert the huts into plots for betterment of occupiers, the petitioner was allotted plot No. 144 in Kannaki Nagar.

A proceeding dated 8.9.1995 was issued allotting 87.50 sq.mtr. for a total consideration of Rs. 6,563 payable in monthly installments. Admittedly, she paid the full amount. She was also issued with No Objection Certificate for obtaining loan from the Nationalised Banks and also for obtaining electricity, water and sewerage connection.

However, the land was not registered in her name. By a proceeding dated 23.6.2003 a revised allotment was made for an extent of 47 sq.mtrs. for which a sale consideration of Rs. 3,525 was fixed. Therefore, the contention of the Respondents is that she is not entitled for the 87.50 Sq.Mt.

Mr. S. Rajendra Kumar, learned counsel for the petitioner would submit that the petitioner was found in possession of 87.50 sq.mtrs. even prior to the allotment of 1995 and having issued a proceedings dated 8.9.1995 for allotment of the same, the respondents cannot revise the allotment arbitrarily and that too, after receiving the entire sale consideration for an extent of 87.50 sq.mtr. The learned counsel also pointed out that the present allottee, one Kamalam is not in possession and she has filed a suit in O.S. No. 313 of 2004 for a declaration which is resisted by the petitioner as well as by the respondent Slum Clearance Board as not maintainable.

The learned counsel would further submit that the petitioner has already been issued with No Objection Certificate, but failed to register the plot, which is arbitrary and the petitioner has rightly invoked Article 226 of Constitution of India for the above reliefs.

On the other hand, the learned counsel for the Slum Clearance Board would submit that the actual measurement of the allotted area was found to be only 47 sq.mtrs. for plot No. 144 and the remaining 40.50 sq.mtr. comes under Dr. Ambedkar Scheme for plot No. 173. The learned counsel pointed out that plot No. 144, which is under the occupation of the petitioner, was mistakenly noted as 87.50 sq.mtr. and therefore, a revised allotment was issued in favour of the petitioner and the remaining extent of 40.50 in plot No. 173 of Dr. Ambedkar Nagar was allotted to one Kamalam. The learned counsel pointed out that the writ petitions are not maintainable and liable to be dismissed.

Mr. R. Manickavel, the learned counsel for the 4th respondent in W.P. No. 79 of 2004 would submit that by a valid proceedings, his client was allotted plot No. 173 of Dr. Ambedkar Nagar for an extent of 40.50 sq.mtr. and she has also paid the installments. The learned counsel also submits that this allotment was made as early as 10.5.1996 and the 4th respondent was also issued with No Objection Certificate for raising of loans etc.

The learned counsel submitted that the 4th respondent has filed a suit for a declaration and the disputed question involves certain facts which need to be proved and the issues cannot be adjudicated in a writ jurisdiction.

Heard and perused the materials available on record.

The petitioner has invoked Article 226 of the Constitution of India for a writ of Mandamus directing the Slum Clearance Board to fulfill their obligation under the proceeding issued by them dated 8.9.1995 allotting 87.50 sq.mtr. of land in Kannaki Nagar. However, the Slum clearance Board would take a stand that the petitioner was not in possession of 87.50 sq.mtr. and the allotment of such extent was a bona fide mistake and therefore, a revised allotment was made, reducing the extent to 47 sq.mtr. The remaining extent of 40.50 sq.mtr. was allotted to the 4th respondent by a proceeding dated 30.5.1996.

The petitioner disputes the said proceeding, which is in favour of the 4th respondent. It is the stand of the petitioner that the 4th respondent was not at all in possession of the land and she was never in possession. A suit filed by the 4th respondent for a declaration is also pending.

As per the revised plan, plot No. 144 for an extent of 47 sq.mt. comes under Kannagi Nagar and the remaining 40.50 sq.mtr. comes under plot No. 173 of Dr. Ambedkar Nagar. A key plan showing both Kannagi Nagar as well as Dr. Ambedkar Nagar is produced by way of typed set by the 4th respondent.

It is pertinent to point out that the petitioner was in possession of 2 cents of land for a long time which was also recognized by the Authorities. At the earliest point of time she was allotted 87.50 Sq.mts. And on demand she had also paid the entire sale consideration. It is not the stand of the respondents that the fourth respondent was also in possession of the same land for a long period. It is also pertinent to point out that the authorities were willing to allot any other plot to the fourth respondent for which she was not agreeable.

In any event, factual aspect is only in respect of the possession. The possession of the petitioner was admitted by the authorities even prior to the scheme. This court is of the considered view that having issued a proceedings dated 8.9.1995 for allotment of the land in possession of the petitioner, the respondents cannot revise the allotment arbitrarily and that too, after receiving the entire sale consideration for an extent of 87.50 Sq.Mts.

The arbitrariness is writ in large on the face of the records and there was not even a notice to revise the allotment, sans enquiry, and that too after eight years. Though the agreement, executed by the authorities was silent about the measurements, the petitioner cannot suffer for the wrong if any, done by the officials.

It is also true that the authorities have made an allotment to the fourth respondent for 40.50 Sq.Mts. showing plot number 173 of Dr. Ambedkar Nagar. But the earlier allotment stands good and as stated above the petitioner is in an admitted possession whereas, the fourth respondent was only allotted a plot. It not the case of the respondents that the fourth respondent was allotted the plot which was in her possession. The out come of the Civil suit also depends on the title to be conferred by the authorities and established possession.

For the reasons stated above the petitioner is entitled for a sale deed to be executed by the authorities for 87.50 Sq.Mts. in plot number 144 in Kannagi Nagar and in plot number 173 of Dr. Ambedkar Nagar.

In the result, both the writ petitions are allowed as prayed for. No costs.