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2009 DIGILAW 123 (MAD)

S. Selvarangam v. K. Neelavathy & Others

2009-01-12

R.BANUMATHI

body2009
Judgment :- This Review Application has been filed to review the order dated 20.8.2008 passed in W.P.No.6194/2002 and to dismiss the Writ Petition and to set aside the consequential order dated 110. 2008 passed by the 2nd Respondent. 2. First Respondent has filed W.P.No.6194/2002 seeking Writ of Certiorarified Mandamus to quash the order of the 2nd Respondent dated 20.2.2001 and direct the 2nd Respondent to issue allotment of Plot No.279, G.K.M. Colony, Chennai to the 1st Respondent. .3. In the Writ Petition, notice was served to the Review Petitioner [3rd Respondent in W.P.No.6194/2002]. Mr. V.R.Kamalanathan has also entered appearance for the Review Petitioner. But when the Writ Petition was taken up for hearing name of the counsel for Review Petitioner / 3rd Respondent was not printed. Therefore, it was recorded that Review Petitioner has not entered appearance. 4. After hearing the arguments of the learned counsel for the Writ Petitioner as well as learned counsel for the Respondents 1 and 2 in the Writ Petition, by the order dated 20.8.2008, this Court allowed the Writ Petition setting aside the Proceedings of the 2nd Respondent dated 20.2.2001 and directed the 2nd Respondent to afford sufficient opportunity to the first Respondent as well as to the Review Petitioner by sending notice and pass appropriate orders. In the said order, this Court further observed that 2nd Respondent shall take decision without being influenced by the exparte decree passed in O.S.No.1292/1987 and also directed to pass an order within eight weeks from the date of receipt of copy of the order. 5. On the basis of the order of this Court dated 20.8.2008 passed in the Writ Petition, 2nd Respondent has conducted enquiry and passed an order on 110. 2008 by cancelling the allotment dated 20.2.2001 in favour of the Review Petitioner. 6. Aggrieved, Petitioner has preferred this Review Application stating that decree and judgment in O.S.No.1292/1987 has reached finality and Writ Petitioner has not chosen to file any application to set aside the decree or prefer appeal before the lower appellate court. According to the Petitioner, the factum of prayer in O.S.No.1292/1987 has been wrongly submitted as it is a suit for specific performance. But the prayer in the said suit was directing the Board to execute lease-cum-sale agreement in favour of Review Petitioner. 7. According to the Petitioner, the factum of prayer in O.S.No.1292/1987 has been wrongly submitted as it is a suit for specific performance. But the prayer in the said suit was directing the Board to execute lease-cum-sale agreement in favour of Review Petitioner. 7. Case of the Review Petitioner is that since the correctness of the Proceedings issued by the Board is being challenged in O.S.No.1292/1987 and the court has also held in favour of Review Petitioner and while being so, directing the very same Board to conduct the enquiry overlooking the decree passed by the trial court is unsustainable. According to the Petitioner on the basis of the wrong submissions made by the Writ Petitioner, Writ Petition has been decided and therefore, the order dated 20.08.2008 has to be reviewed. .8. Resisting the application, 1st Respondent has filed the counter stating that property was allotted to the 1st Respondent on 22. 1984 and the lease-cum-sale agreement was executed on 3. 1984 and possession was also delivered to the first Respondent. It is averred that the alleged assessment in favour of the Review Petitioner will not confer any right on him. Since, Petitioner has also participated in the enquiry conducted by the Board and submitted his reply, he cannot contend that the order has been passed in a hurried manner. Case of the 1st Respondent is that judgment and decree of the civil court being a fraudulent and collusive one, it will not bind the Writ Petitioner and no grounds made out to interfere with the order of this Court. 9. Mr. R.Subramaniam, learned Senior Counsel for the Review Petitioner has submitted that the Decree has been passed by the Civil Court in O.S.No.1292/1987 which reached finality. Based on the decree, the impugned order dated 20.2.2001 has been passed by the Slum Clearance Board and the Civil Court decree cannot be nullified by the Writ Court. It was further argued that Review Petitioner is residing in Plot No.1371 (New No.279) whereas the 1st Respondent is residing elsewhere (Sembiam) and as per G.O.Ms.No.1117 dated 26. 1979 and G.O.Ms.No.991 dated 011. 1982, only those who are in possession alone are entitled for allotment. 10. Mr. R.Chandraraj, learned counsel for the 1st Respondent has contended that the decree in O.S.No.1292/1987 has no binding effect and without affording sufficient opportunity, TNSCB has passed the impugned order dated 20.2.2001. 1979 and G.O.Ms.No.991 dated 011. 1982, only those who are in possession alone are entitled for allotment. 10. Mr. R.Chandraraj, learned counsel for the 1st Respondent has contended that the decree in O.S.No.1292/1987 has no binding effect and without affording sufficient opportunity, TNSCB has passed the impugned order dated 20.2.2001. Learned counsel for the 1st Respondent further contended that when the Review Petitioner/3rd Respondent has not chosen to appear for the hearing in the Writ Petition, it is not open to him to seek review of the order. 11. Mr. Y.Bhuvaneshkumar, learned counsel for R2 and R3 has submitted that as per the direction of this Court in the main Writ Petition, 2nd Respondent has conducted an enquiry and passed final orders on 110. 2008 and Review Petitioner has also participated in the enquiry conducted by the 2nd Respondent. Learned counsel for the Respondents 2 and 3 further submitted that when the earlier order dated 20.8.2008 has been implemented, the Review Application is not maintainable. 12. Parties are related as under:- Swaminathan Kannan Neelavathy Selvarangam 13. Review Petitioners father Swaminathan was an Ex.Serviceman. Case of the Review Petitioner is that his father Swaminathan as Ex.Serviceman was in enjoyment of Plot No.1369 (new Plot No.280), 1370 and 1371 (new Plot No.279). According to the Review Petitioner for the sake of records, Plot No.1369 was in the name of Narasimha Naidu, Plot No.1370 was in the name of Petitioners father Swaminathan and 1371 (new Plot No.279) was in the name of Petitioners aunt Neelavathy ammal. Further case of the Review Petitioner is that ever since formation of G.K.M. Colony, his father Swaminathan and the Review Petitioner have been in possession and enjoyment of Plot No.1371 (new Plot No.279) and the 1st Respondent Neelavathi ammal was never in possession and enjoyment of the same. 14. O.S.No.1292/1987 was filed by the Review Petitioner stating that he is in possession and enjoyment of Plot No.1371 (new Plot No.279) and that Neelavathi ammal has attempted to trespass into his property. In O.S.No.1292/1987, Review Petitioner sought for the reliefs:- .(i) directing TNSCB to execute the lease-cum-sale agreement in favour of the Plaintiff in respect of the property Plot No.1371 (new Plot No.279); .(ii) for Permanent Injunction restraining the Defendants Neelavathi ammal and Edward Paul from interfering with the possession and enjoyment of the Review Petitioner in respect of Plot No.1371 (new Plot No.279). The said suit was decreed exparte on 20.07.1999. 15. For the execution of the decree, Review Petitioner has filed E.P.No.1495/2000. Based on the decree in O.S.No.1292/1987, by the order dated 20.02.2001 in Proceedings Na.Ka.No.8366/87 E3, TNSCB has passed an order directing execution of lease-cum-sale agreement. Recording execution of lease-cum-sale agreement, Execution Petition was closed on 06.07.2001. 16. First Respondent filed W.P.No.6194/2002 on the ground that (i) O.S.No.1292/1987 was an exparte decree; and (ii) Review Petitioners father Swaminathan was allotted only Plot No.280 and he had no right in Plot No.279. At the time when the Writ Petition was heard, name of the counsel who has entered appearance for Review Petitioner was not printed. Therefore, Review Petitioner could not be heard. Therefore, accepting the contention of the 1st Respondent, Proceedings in Na.Ka.No.8366/87 E3 dated 20.02.2001 was set aside by this Court. 17. On 20.08.2008 when the order was passed in W.P.No.6194/2002, first Respondent has not filed the Plaint in O.S.No.1292/1987. By perusal of the Plaint in O.S.No.1292/1987 filed by the Review Petitioner, it is seen that though Review Petitioner has stated that Plot No.1371 (new Plot No.279) was allotted to the 1st Respondent Neelavathi ammal, she was only the name lender and that she was never in possession. It is not as if the suit O.S.No.1292/1987 was filed for Specific Performance as alleged by the 1st Respondent. The said suit was filed by the Review Petitioner for a direction to TNSCB to execute the lease-cum-sale agreement in his favour. For execution of the decree, Execution Petition E.P.No.1495/2000 was filed and Court has also recorded execution of lease-cum-sale agreement. Decree of the Civil Court has reached finality. .18. Based on the decree of Civil Court, Proceedings in Na.Ka.No.8366/87 E3 dated 20.02.2001 was passed by TNSCB. When the Civil Court decree has reached the finality, that cannot be nullified by resorting Writ jurisdiction under Art.226 of Constitution of India. In my considered view, the purport of the suit and the nature of relief sought for in O.S.No.1292/1987 was not properly placed by the 1st Respondent in W.P.No.6194/2002. Since name of the counsel for Review Petitioner was not printed and since Review Petitioner was not heard, correct facts could not be ascertained. 19. Order in W.P.No.6194/1987 is based on incorrect facts and the same is unsustainable. Since name of the counsel for Review Petitioner was not printed and since Review Petitioner was not heard, correct facts could not be ascertained. 19. Order in W.P.No.6194/1987 is based on incorrect facts and the same is unsustainable. As pointed out earlier, Proceedings in Na.Ka.No.8366/87 E3 dated 20.02.2001 is based upon the Civil Court decree and recording the same, Execution Petition was also closed. 20. As far as TNSCB was concerned, decree of Civil Court had a bearing and therefore, there could not have been an occasion to afford opportunity to the 1st Respondent while passing the Proceedings in Na.Ka.No.8366/87 E3 dated 20.02.2001. If really, 1st Respondent was aggrieved, 1st Respondent ought to have challenged the decree of the Civil Court in a manner known to law. Proceedings in Na.Ka.No.8366/87 E3 dated 20.02.2001 which is consequential of the decree of Civil Court cannot be nullified by resorting to Writ jurisdiction on the ground that no opportunity was afforded to the 1st Respondent. 21. On behalf of the Review Petitioner, learned Senior Counsel has drawn Courts attention to the address of the Review Petitioner as well as the 1st Respondent. In O.S.No.1292/1987, address of the Review Petitioner has been stated as "Plot No.1371". Review Petitioner has produced the Family card showing his residence in Plot No.1371 (new Plot No.279) for the year 1998-2003; 2003-2005 and 2005-2009. Review Petitioner has also produced the receipts for payment of water charges to Chennai Metropolitan Water Supply and Sewerage Board. Review Petitioner has produced the electricity consumption card showing his residence at Door No.73, Punitha Anthoniar street. 22. Learned Senior Counsel has drawn Courts attention to G.O.Ms.No.991 Housing & Urban Development Dept. dated 011. 1982, as per which only such of the slum dwellers, the condition for the allotment is that the allottee must be in actual possession of the Plot. .23. By perusal of the records, it is seen that in the Writ Petition, 1st Respondents address has been stated as No.8, Madurasamy Madam street, Sembiam, Chennai-11. In the deed of Power of Attorney (dated 06. 1998) executed by the 1st Respondent also, the residential address of 1st Respondent has been stated as ? No.8, Madurasamy Madam street, Sembiam, Chennai. Like wise, in the cancellation of Power of attorney given to the brothers of the Review Petitioner (dated 09. 2005) also 1st Respondents address has been stated as No.8, Madurasamy Madam street, Sembiam, Chennai. 1998) executed by the 1st Respondent also, the residential address of 1st Respondent has been stated as ? No.8, Madurasamy Madam street, Sembiam, Chennai. Like wise, in the cancellation of Power of attorney given to the brothers of the Review Petitioner (dated 09. 2005) also 1st Respondents address has been stated as No.8, Madurasamy Madam street, Sembiam, Chennai. When the 1st Respondent is residing elsewhere as per G.O.Ms.No.991 Housing & Urban Development Dept. dated 011. 1982, 1st Respondent cannot stake claim for allotment. 24. Pursuant to the order of this Court in the Writ Petition, on 110. 2008, TNSCB appears to have passed an order. Placing reliance upon (2007) 1 SCC 457 [State of Haryana and others v. M.P.Mohla], learned counsel for the 1st Respondent has submitted that based upon the order of the Court in the Writ Petition, when the order has been passed by TNSCB, Review Petition is not maintainable and the Review Petitioner could challenge the order only by filing an appeal and the Review Petition is not maintainable. This contention does not merit acceptance. When the correct facts were not placed before the Court, it is always open to the Court to review its earlier order. High Court being a Court of Records, has inherent power to rectify the mistakes by reviewing its order. 25. In the result, the Review Petition is allowed. Order in W.P.No.6194/2002 dated 20.8.2008 is ordered to be recalled. Proceedings of TNSCB in Na.Ka.No.8366/87 E3 dated 20.2.2001 shall continue to hold good. First Respondent is at liberty to challenge the decree in O.S.No.1292/1987 in a manner known to law, if she is so advised. Consequently, M.P.No.1/2008 is closed.