A. Vasantha v. Tamil Nadu Slum Clearance Board Rep. By its Chairman & Others
2008-08-18
R.BANUMATHI
body2008
DigiLaw.ai
Judgment :- Petitioner seeks writ of certiorafied mandamus to quash the orders passed by the 2nd Respondent in Se.Mu.Ka.No.2448/2003/B2, dated 012. 2005 and for appropriate direction. 2. Plot No.161 to an extent of 97.22 Sq.Mtr. in Erumapalayam Housing Scheme was allotted to Rangan (father of Petitioner). After the death of Rangan, the Petitioner, 3rd Respondent and their mother and brothers and sisters, who are legal heirs of Rangan became entitled to the property. 3. Case of Petitioner is that there was a family arrangement and settlement in the family and 3rd Respondent has relinquished his rights over the property in favour of the Petitioner and he has also given "No Objection Certificate" to the 2nd Respondent/Board. By the proceedings in Na.Ka.No.2448/2003/B2, dated 17.03.2004 the allotment was transferred in the name of the Petitioner. Consequent to "No Objection Certificate" issued by the 2nd Respondent, the Petitioner has also obtained Electricity Service Connection from Tamil Nadu Electricity Board and made regular payments. By the impugned proceedings in Se.Mu.KA.No.2448/2003/B2, dated 012. 2005, 2nd Respondent cancelled the earlier order dated 17.03.2004. and ordered restoration of joint allotment in the names of Petitioner and 3rd Respondent. The Petitioner challenges the same contending that the impugned order of the 2nd Respondent is a non-speaking order and is in violation of principles of natural justice and unsustainable. 4. Respondents 1 & 2 have filed counter stating that subsequent to proceedings dated 17.03.2004, Board has transferred the allotment to Petitioners name. 3rd Respondent has produced the sworn affidavit dated 211. 2005 stating that the Petitioner had cheated and obtained the Notarized affidavit and that it was not given to transfer the allotment in the Petitioners individual name. According to the 2nd Respondent, upon consideration of the sworn affidavit filed by 3rd Respondent, 2nd Respondent by the impugned proceedings cancelled the order of transfer of allotment dated 17.03.2004 in favour of the Petitioner and ordered to implement the earlier joint allotment made in favour of the Petitioner and 3rd Respondent. 5. The 3rd Respondent has also filed counter resisting the writ petition. 6. Challenging the impugned order the learned counsel for the petitioner Mr. Kandavadivel Doraisami, has submitted that the impugned order is a non-speaking order and before passing the order, no notice was served upon the petitioner and therefore, the impugned order is unsustainable. 7. The learned counsel for the 2nd Respondent/Board Mr.
6. Challenging the impugned order the learned counsel for the petitioner Mr. Kandavadivel Doraisami, has submitted that the impugned order is a non-speaking order and before passing the order, no notice was served upon the petitioner and therefore, the impugned order is unsustainable. 7. The learned counsel for the 2nd Respondent/Board Mr. Y. Bhuvanesh kumar supported the impugned order and submitted that having regard to the sworn statement filed by the 3rd Respondent, Board has cancelled the earlier order dated 17.03.2004 and ordered to implement the earlier joint allotment. 8. The learned counsel for 3rd Respondent submitted that sworn statement of the 3rd Respondent cannot form the basis for transfer of allotment order in favour of the petitioner and in the absence of proper document the 2nd Respondent has rightly cancelled the earlier allotment order dated 17.03.2004, in favour of the Petitioner. 9. Palanaiammal, Gunalan, Chandra and Janaki are the legal heirs of deceased Rangan. The family members are said to have executed documents consenting for issuing joint allotment in favour of Petitioner and 3rd Respondent. The 3rd Respondent is alleged to have given a sworn statement giving consent for effecting transfer of allotment in favour of his sister viz., the Petitioner. Consequent to the sworn statement, the allotment order was transferred in the name of the Petitioner by proceedings dated 17.03.2004. The petitioner is said to be paying the instalments due and payable to the Slum clearance Board. The Petitioner is also said to have obtained Electricity Service Connection and making regular payments. 10. The 3rd Respondent having given sworn statement out of his own volition, he denies any such family arrangement and also denies having given any consent for transfer of allotment in the name of the Petitioner. Since, 3rd Respondent denied his sworn statement, 2nd Respondent rightly cancelled the earlier allotment dated 17.03.2004 and issued the impugned order to implement the earlier allotment made in favour of the petitioner and 3rd Respondent. 11. Whether there was any family arrangement and whether 3rd Respondent has given any sworn statement are questions of fact to be determined by competent civil court. Dispute as to the right of right to the property and correctness of statement given cannot be disputed in the proceedings under Article 226 of the Constitution of India.
11. Whether there was any family arrangement and whether 3rd Respondent has given any sworn statement are questions of fact to be determined by competent civil court. Dispute as to the right of right to the property and correctness of statement given cannot be disputed in the proceedings under Article 226 of the Constitution of India. The question, whether there was any family arrangement and whether 3rd Respondent has given any sworn statement involves recording of evidence and analysis of the same, which cannot be done in writ proceedings. As held by the Honble Supreme Court in ( AIR 1964 SC 1419 : 1964(6) SCR 654 ), Thansingh Nathmal V A.Mazid, Supdt of Tax, the High Court does not generally enter upon determination of questions of fact and analysis of evidence. 12. Since, the 3rd Respondent has disputed having given any sworn statement, the 2nd Respondent rightly restored the earlier joint allotment made in favour of the petitioner and 3rd Respondent. The correctness and the same cannot be challenged in the proceedings under Article 226 of the Constitution of India. 13. In the result, the writ petition is dismissed. However, the petitioner is at liberty to approach the Civil Court to establish her right, if she is so advised. There is no order as to costs.