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2015 DIGILAW 3522 (MAD)

D. Rukmani Ammal v. State of Tamil Nadu

2015-10-28

G.CHOCKALINGAM, S.MANIKUMAR

body2015
JUDGMENT G.CHOCKALINGAM, J. Before the Writ Court (learned single Judge), in W.P.(MD).Nos. 21284 and 21285 of 2014, the appellants herein (writ petitioners) challenged the validity of the order dated 24.07.2013, passed by the second respondent-District Collector, Tuticorin, in and by which, the Tamil Nadu Slum Clearance Board (for short, 'TNSCB') was granted permission for constructing houses and buildings for the poor people, i.e. landless poor labourers who were dispossessed from their hutment at the time of widening the roads. The learned single Judge, after hearing the learned counsel for the parties, dismissed both the Writ Petitions by common order dated 29.04.2015, against which, the appellants/writ petitioners have filed the above Writ Appeals. 2. The learned counsel for the appellants in both the appeals argued that the learned single Judge erred in observing that the appellants did not posses any documentary evidence to show their possession over the land(s) in question. He further contended that the finding of the learned single Judge that it is not open to the appellants/writ petitioners to file Writ Petitions challenging the impugned order of District Collector, without challenging the notice issued under Sections 6 and 7 of the Tamil Nadu Land Encroachment Act, is erroneous and opposed to well settled proposition of law. The finding of the learned single Judge that Section 52 of the Transfer of Property Act cannot be pressed into service in the present case, for the reason that the writ petitioners are not the owners of the lands in question and their ownership is yet to be decided, is against the law settled by the Supreme Court in various judgments. Further, he contended that the suits filed by the appellants, are not barred under Section 14 of the Tamil Nadu Land Encroachment Act or any other law in force. The said suits as well as the Writ Petitions filed by the appellants, are maintainable without any challenge to the notice under Sections 6 and 7 of the Tamil Nadu Land Encroachment Act. The learned single Judge mainly relied on the decision of this Court reported in 2013 (6) MLJ 296 (G.Annadurai Vs. District Collector, Kancheepuram District and others), which may not be applicable to the facts of the present case. The learned single Judge mainly relied on the decision of this Court reported in 2013 (6) MLJ 296 (G.Annadurai Vs. District Collector, Kancheepuram District and others), which may not be applicable to the facts of the present case. Learned counsel further contended that Section 52 of the Transfer of Property Act may squarely apply to the facts of the present case and the Doctrine of Lis Pendens will apply in respect of handing over of the possession of the properties in question. When the interim injunction granted by the trial Court in the said suits filed by the appellants, is still in force, the notices issued by the Tahsildar under the Tamil Nadu Land Encroachment Act, are contrary to law and not maintainable in the eye of law. Since the plaintiffs (writ petitioners) are in possession of the suit properties, the learned single Judge ought to have allowed the Writ Petitions. Hence, the learned counsel appearing for the appellants/writ petitioners prayed for setting aside the impugned common order passed by the learned single Judge and allow the Writ Appeals by directing the parties to await till the outcome of the suits filed by the appellants. Learned counsel for the appellants/writ petitioners relied on various decisions of the Supreme Court and this Court, in support of his above contentions. 3. The learned counsel appearing for the fifth respondent, who is the contractor, contended that the learned single Judge, after observing the principles laid down by this Court in the said decision, dismissed the Writ Petitions on sound reasoning. Further, in this case, the interim injunction granted by the trial Court in the said suits, is only for a limited period and the same is over. The fifth respondent, who is a contractor, brought the materials at considerable costs and stored the same in the site and the construction work started with huge expense. The appellants/writ petitioners are not in enjoyment and possession of the suit properties and after the impugned order of the District Collector, dated 24.07.2013, the fifth respondent entered into the properties and started construction work and bought materials with huge expense and the Writ Petitions are not in the interest of justice. There is no merit in the Writ appeals and the same are liable to be dismissed. 4. There is no merit in the Writ appeals and the same are liable to be dismissed. 4. The learned Additional Advocate General appearing for the respondents 3 and 4 (TNSCB) and the learned Special Government Pleader appearing for the respondents 1 and 2 contended that the Tahsildar/District Collector has every power to issue notice under the provisions of the Tamil Nadu Land Encroachment Act and the notice issued by the District Collector is perfectly valid in law. They further contended that the interim injunction granted by the trial Court is not in force, which is evident from the order of the Court itself. They further contended that the appellants/writ petitioners have not filed any application in the trial Court to extend the interim injunction and had not even applied for fresh injunction. Without doing the same, the claim of the appellants/writ petitioners that they are in possession and enjoyment of the properties, is not at all correct and after the injunction period is over, the District Collector/Tahsildar is empowered to issue notice under the Tamil Nadu Land Encroachment Act and accordingly, the impugned order dated 24.07.2013 was passed. Further, the contractor entered upon the properties for construction of houses for the poor people in the interest of public. There is no merit in the Writ Appeals and the learned single Judge, after considering all the relevant materials and documents, dismissed the Writ Petitions and there is no reason to interfere with the impugned common order of the learned single Judge and the Writ Appeals are liable to be dismissed. 5. Heard the learned counsel appearing for the parties and perused the materials available on record. 6. It is the admitted case of the plaintiffs (writ petitioners) that they have filed suits in O.S.Nos.175 and 176 of 2013 before the Sub-Court, Tuticorin, for declaration that the plaint schedule properties belong to them; for consequential prohibitory injunction restraining the defendants and their man and agents not to interfere and disturb the plaintiffs' peaceful possession and enjoyment of the plaint schedule properties and also for mandatory injunction to direct the defendants to issue patta in the name of the plaintiffs relating to the plaint schedule properties. Both the plaintiffs (writ petitioners herein), along with one D.Brahmanantham, also filed O.S.No.364 of 2014, before the Sub-Court, Tuticorin, praying for permanent injunction restraining the defendants, their men and agents not to interfere and disturb the plaintiffs' peaceful possession and enjoyment of the plaint schedule properties. In O.S.No.364 of 2014, the TNSCB and the fifth respondent herein are arrayed as defendants and in O.S.Nos.175 and 176 of 2013, the Tahsildar, Tuticorin, the Revenue Divisional Officer, Tuticorin and the District Collector, Tuticorin, are arrayed as defendants. In paragraphs 3 to 5 of the said three suits (plaints), it is stated as follows: "3. The plaintiff and their partners are absolute owners of properties in S.Nos.133/3, 133/4, 138/2, 138/3, 138/4B, 139/2, 139/3, 139/4, 140, 141/1, 142/2 of total extent of 38.50 Acres. 4. The plaintiff and their partners had acquired title for the above lands from their predecessors in title namely, Gurusamy and Thangapandiyan, by means of registered mortgage deeds No.165/1958 dated 24.01.1958 and 1327/1962 dated 03.05.1962. 5. The said plaintiff and their predecessors in title had enjoyed the above lands as salt pan with the adjacent plaint schedule properties which were classified as assessed waste dry lands." 7. The appellants/writ petitioners/plaintiffs have produced various sale deeds/mortgage deeds (copies) pertaining to the properties in question, which is found in additional typed set of papers filed along with the Writ Appeals. From a reading of the plaint averments in the above said three suits, it is seen that the writ petitioners (plaintiffs) claim title based on the above said sale deeds/mortgage deeds executed by predecessors-in-title to the suit properties in favour of Gurusamy Nadar, who in turn executed the same in favour of various persons, thereby, showing transfer of title by the transferors to the respective transferees. 8. The above said three suits were filed subsequent to the execution of those sale deeds/mortgage deeds. 8. The above said three suits were filed subsequent to the execution of those sale deeds/mortgage deeds. At this juncture, it is to be noted that Section 52 of the Transfer of Property Act deals with transfer of property pending suits, which reads as follows: "Section 52: Transfer of property pending suit relating thereto:--During the pendency in any Court having authority within the limits of India excluding the State of Jammu and Kashmir or established beyond such limits by the Central Government of any suit or proceedings which is not collusive and in which any right to immovable property is directly and specifically in question, the property cannot be transferred or otherwise dealt with by any party to the suit or proceedings so as to affect the rights of any other party thereto under any decree or order which may be made therein, except under the authority of the Court and on such terms as it may impose. Chapter IV of the Transfer of Property Act deals with mortgages of immovable properties and the definitions of -mortgage, mortgagor, mortgagee, mortgage-money and mortgage-deed -are mentioned in Section 58(a) of the Transfer of Property Act, which reads as follows: "Section 58: "Mortgage", "mortgagor", "mortgagee", "mortgage-money" and "mortgage-deed" defined--(a) A mortgage is the transfer of an interest in specific immovable property for the purpose of securing the payment of money advanced or to be advanced by way of loan, an existing or future debt, or the performance of an engagement which may give rise to a pecuniary liability. The transferor is called a mortgagor, the transferee a mortgagee, the principal money and interest of which payment is secured for the time being are called the mortgage-money, and the instrument (if any) by which the transfer is effected is called a mortgage-deed." A mortgage deed is executed by the mortgagor in favour of the mortgagee in respect of transfer of interest in respect of immovable property for securing payment of money advanced by way of loan and in the process of execution of mortgage deed, there is no question of passing of title. 9. 9. From the above provisions of the Transfer of Property Act, the claim of the writ appellants/writ petitioners/plaintiffs that they have acquired title by virtue of those mortgage deeds executed by the said Gurusamy Nadar, is not sustainable in law and the writ petitioners/plaintiffs cannot claim title based on those mortgage deeds/sale deeds. 10. In this regard, it is worthwhile to quote the relevant portions of the mortgage deeds: (a) Mortgage deed dated 24.01.1958 executed by Gurusamy Nadar and another in favour of V.V.D.Dhanapalan and four others: (b) Mortgage deed dated 24.06.1959 executed by Gurusamy Nadar and another in favour of V.V.D.Dhanapalan and four others: (c) Mortgage deed dated 03.05.1962 executed by Gurusamy Nadar and another in favour of V.V.D.Dhanapalan and four others: 11. On a careful reading of the above recitals in the mortgage deeds, which were produced by the writ appellants/writ petitioners/plaintiffs, it is specific and clear that the executors are only executing the mortgage deeds as a security for the amount due in the transaction between the parties and among themselves. The mortgage deeds in question are not resulting in usufructuary mortgages, as no possession had been handed over by the said Gurusamy Nadar in favour of the writ petitioners/plaintiffs. It is only a simple mortgage and a mere mortgage of the properties in question for recovering amount from the mortgagor, i.e. Gurusamy Nadar. Hence, no title flows from the security deeds (which were executed as mortgage deeds) executed by the mortgagor in favour of the mortgagee. Therefore, from these mortgage deeds, the plaintiffs cannot derive or acquire title in respect of the properties in question. The plaintiffs (writ petitioners) have not produced any document to show that they are in possession of the properties in question or the possession was handed over to them by the said Gurusamy Nadar, i.e. the executor of the security deeds (mortgage deeds). Therefore, the claim of the appellants/writ petitioners that they are in possession of the properties in question, had not been proved by them by adducing proper evidence. Hence, the claim of the plaintiffs (writ petitioners) that they have acquired and perfected title by those mortgage deeds, is not legally sustainable/maintainable. 12. Therefore, the claim of the appellants/writ petitioners that they are in possession of the properties in question, had not been proved by them by adducing proper evidence. Hence, the claim of the plaintiffs (writ petitioners) that they have acquired and perfected title by those mortgage deeds, is not legally sustainable/maintainable. 12. Learned counsel appearing for the appellants/writ petitioners/plaintiffs contended that the impugned order passed by the second respondent/District Collector is affected by the Doctrine of Lis Pendens, and hence, the writ petitioners are entitled for the relief as prayed for in the Writ Petitions. 13. On the other hand, learned Additional Advocate General appearing for the respondents 3 and 4/TNSCB and the learned Special Government Pleader appearing for the respondents 1 and 2 contended that the Doctrine of Lis Pendens will not apply to the facts of the present case, as the suits filed by the writ petitioners are pending before competent Civil Court and no decision is arrived at on the same as on today and the interim orders of injunction already granted in the said two suits in O.S.Nos.175 and 176 of 2013, are no longer in existence, as the period stipulated in the orders expired as stipulated in the orders themselves. 14. On a reading of the above extracted Section 52 of the Transfer of Property Act, it is seen that the Doctrine of Lis Pendens will apply only to the transactions which occurred during the pendency of the cases, i.e. from the date of filing of such cases till the disposal of the cases and in some cases, it extends upto the further period of execution of those orders. In the case on hand, the suits filed by the plaintiffs (writ petitioners) before the Sub-Court, Tuticorin in O.S.Nos.175 and 176 of 2013, are still pending and no final decision is arrived at on those suits. It is admitted that the interim orders of injunction already granted in those suits, are no longer in existence as on today and that no application for extension of those interim orders had been filed and no fresh application for interim orders, had also not been filed by the plaintiffs. Hence, the argument of the learned counsel for the appellants/writ petitioners/plaintiffs that the impugned order passed by the second respondent/District Collector is affected by the Doctrine of Lis Pendens, is not sustainable. 15. Hence, the argument of the learned counsel for the appellants/writ petitioners/plaintiffs that the impugned order passed by the second respondent/District Collector is affected by the Doctrine of Lis Pendens, is not sustainable. 15. It is admitted by the writ petitioners/plaintiffs that the said suits are still pending before the Sub-Court. Further, they have sought for interim injunction pending suits in O.S.Nos.175 and 176 of 2013 and after hearing both sides, by order dated 31.01.2014, the trial Court (Sub-Court) granted interim injunction in those two suits, with an observation that since the suit properties are necessary for public use, as contended by the defendants, the parties shall co-operate for disposal of the suits within six months, failing which, the interim injunction shall stand automatically vacated. The said order dated 31.01.2014 (two separate orders) passed in the applications in the respective suits, reads as follows: Admittedly, as contended by the learned counsel for the parties, no appeal had been filed against the said interim order of injunction granted by the trial Court, nor any application for extending the said interim order of injunction is filed. The suits in O.S.Nos.175 and 176 of 2013 are not disposed of as on today, and it is contended by the learned counsel for the parties that the said two suits are pending. Thus, it is clear that the suits have not been disposed of within six months from 31.01.2014. Hence, the interim orders of injunction granted by the trial Court, got vacated automatically by virtue of the observations made in the said order dated 31.01.2014. 16. It is contended by the learned counsel for the appellants/plaintiffs that delay in disposing of the suits, is not caused by the plaintiffs. The contention of the learned counsel for the appellants/plaintiffs that the interim order of injunction is still in force, is not acceptable, because, the interim order of injunction granted by the trial Court, worked itself out on account of the trial Court's observation as stated above. Hence, the contention of the learned counsel for the appellants/writ petitioners that the impugned order dated 24.07.2013 passed by the District Collector, is affected by the Doctrine of Lis Pendens and the same is liable to be quashed, is not sustainable. No title is passed to the writ petitioners/plaintiffs by virtue of the mortgage deeds executed by the said Gurusamy Nadar. 17. No title is passed to the writ petitioners/plaintiffs by virtue of the mortgage deeds executed by the said Gurusamy Nadar. 17. Further, the patta is not issued in the name of the plaintiffs. It is admitted by either side that the lands in question are classified as "assessed waste dry lands" and hence, the lands in question are in possession with the Government. There is no material produced on the side of the writ petitioners/plaintiffs to show that they are in possession of the properties in question by virtue of ownership. Since the lands in question are Government lands classified as "assessed waste dry lands", the Tahsildar, Tuticorin issued issued notice under Section 7 of the Tamil Nadu Land Encroachment Act for utilising the lands to construct houses for poor people through the TNSCB. Since the lands in question are in possession of the writ petitioners/plaintiffs, the writ petitioners/plaintiffs objected to the said notice issued by the Tahsildar and subsequently, they have filed O.S.Nos.175 and 176 of 2013 before the trial Court for declaratory relief and for mandatory and prohibitory injunction against the defendants, as stated above and as already stated, the trial Court granted interim orders of injunction with observations. 18. Admittedly, the suit lands are only assessed as waste dry lands, which shows that the lands in question belongs to Government and the title does not vest with any individual, much less the plaintiffs. One of the reliefs in the suits in O.S.Nos.175 and 176 of 2013 is for mandatory injunction to direct the defendants to issue the patta in the name of the writ petitioners/plaintiffs relating to the lands in question, which itself shows that the patta does not stand in the name of the appellants/plaintiffs. 19. Admittedly, the suits are pending before the competent Civil Court. This Court, under Article 226 of the Constitution of India, in the Writ jurisdiction, cannot decide the right, title or interest over the suit properties/lands in question and only the competent Civil Court will have to decide the issues between the parties based on oral and documentary evidence. 20. 19. Admittedly, the suits are pending before the competent Civil Court. This Court, under Article 226 of the Constitution of India, in the Writ jurisdiction, cannot decide the right, title or interest over the suit properties/lands in question and only the competent Civil Court will have to decide the issues between the parties based on oral and documentary evidence. 20. In this case, the second respondent/District Collector passed the impugned order dated 24.07.2013 on the basis of the requisition of the requisitioning authority, namely the respondents 3 and 4/TNSCB and the proposal submitted by them on 08.05.2013 in respect of utilisation of the lands in question for the purpose of putting up residential houses to accommodate the landless poor labourers who were dispossessed from their hutment at the time of widening the roads by Highways authorities. Taking into consideration the fact that the project in question is meant to benefit the public at large, especially to accommodate the poor landless labourers who were dispossessed, the second respondent-District Collector, by the impugned order dated 24.07.2013, granted such permission to the respondents 3 and 4/TNSCB for construction of 444 houses to those landless labourers. The Tahsildar, Tuticorin also issued notice under Section 7 of the Tamil Nadu Land Encroachment Act to the encroachers/writ petitioners/plaintiffs to vacate the properties in question, for utilising the lands in question for the public purpose, i.e. for completion of the said project, namely construction of 444 houses to the poor landless labourers. Further, notice under Section 6 of the Tamil Nadu Land Encroachment Act was also issued to the encroachers including the appellants/writ petitioners. The lands in question were subsequently handed over to the Tahsildar, Tuticorin, for the purpose of the said project to be completed by the TNSCB. A copy of the sit handing over report, dated 13.11.2014 is enclosed in the typed set of papers filed along with the Writ Appeals, which shows that the site for the construction of 444 houses (G + 2) including development works at Rajiv Gandhi Nagar in Thoothukudi Corporation under Rajiv Awas Yojana Scheme (RAY) (Relocation), was handed over to the Assistant Engineer of the TNSCB. 21. 21. Subsequently, tenders were floated for completion of the construction of the buildings and ultimately, the tender was awarded in favour of the fifth respondent, who made all arrangements with huge expenditure for construction of the houses and since the project in question is a time-bound project, the funds have to be utilised. It is only at this stage the writ petitioners have moved the Writ Court (single Judge) in 2014, when the fact remains that the connected suits are pending before the trial Court. When the interim injunction got vacated automatically and when the title of the plaintiffs is pending adjudication before the Civil Court, the writ petitioners have filed the Writ Petition suppressing material facts, which shows that the writ petitioners have not come with clean hands, and hence, the Writ Petitions are not maintainable and liable to be dismissed. 22. In this case, the Tahsildar, Tuticorin issued notice dated 26.02.2013 under Section 7 of the Tamil Nadu Land Encroachment Act and the notice under Section 6 of the Tamil Nadu Land Encroachment Act was issued on 07.03.2013. The suits in O.S.Nos.175 and 176 of 2013 were filed by the plaintiffs on 29.04.2013. The interim injunction granted pending suits, already got vacated on expiry of six months from 31.01.2014. When there is no interim injunction against the respondents, the impugned order dated 24.07.2013 passed by the second respondent/District Collector is not hit by the Doctrine of Lis Pendens. 23. The contention of the learned counsel for the appellants that the lands in question could not be classified as assessed waste dry lands and they were classified under the category of 'nanja' lands, and hence, it cannot be handed over to the TNSCB for the said project of construction of houses to poor labourers, is not acceptable, for the reason that the project in question is for public interest, namely for construction of houses to poor labourers who were dispossessed due to widening of roads by the Highways Department. 24. Learned counsel for the appellants relied on a decision of the Supreme Court reported in 2007 (4) MLJ 79 (SC) = 2007 (11) SCC 374 (All Bengal Excise Licensee Assn. Vs. Raghabendra Singh) for the proposition that the inherent power under Section 151 of the Code of Civil Procedure is to be exercised in the interest of justice and public interest. Vs. Raghabendra Singh) for the proposition that the inherent power under Section 151 of the Code of Civil Procedure is to be exercised in the interest of justice and public interest. With regard to the inherent powers of the Court under Order 39 Rule 2-A CPC to prevent abuse of process of law relating to injunction and that technicality will not stand in the way of the Court exercising such power, learned counsel for the appellants relied on the decision of the Supreme Court reported in 1996 (4) SCC 622 = 1996 (2) CTC 557 (SC) (Delhi Development Authority Vs. Skipper Construction Company (P) Ltd. and another). For the inherent power conferred on Courts under Section 151 CPC, which will have to be exercised in the interest of justice, learned counsel for the appellants also relied on a Full Bench decision of this Court reported in AIR 1975 Madras 270 (Century Flour Mills Vs. S.Suppiah). Learned counsel for the appellants therefore contended that this Court may exercise powers under Section 151 CPC and Order 39 Rule 2-A CPC and set at naught the error committed by the plaintiffs (writ petitioners) in not seeking for extension of interim order of injunction granted by the trial Court, which had virtually worked itself out in automatically got vacating the same by the observations of the trial Court in the order. Be that as it may, the appellants cannot be allowed to take unfair advantage of the wrong committed by them and having allowed the interim injunction to get itself vacated, it is too late in the date for the appellants/plaintiffs to seek for appropriation of the remedy. 25. Learned counsel for the appellants next relied on the decision of the Supreme Court reported in AIR 1970 SC 1717 = 1969 (2) SCC 787 (Kedarnath Vs. Sheonarain), wherein the Apex Court held that the Doctrine of Lis Pendens as provided for under Section 52 of the Transfer of Property Act, applies irrespective of strength or weakness of the case on one side or other. For the same provisions of Section 52 of the Transfer of Property Act, the learned counsel also relied on the decisions of the Supreme Court reported in AIR 2014 SC 279 = 2014 (2) CTC 86 (SC) (K.N.Aswathnarayana Setty (D) Vs. State of Karnataka), 1996 (5) SCC 539 (Sarvinder Singh Vs. For the same provisions of Section 52 of the Transfer of Property Act, the learned counsel also relied on the decisions of the Supreme Court reported in AIR 2014 SC 279 = 2014 (2) CTC 86 (SC) (K.N.Aswathnarayana Setty (D) Vs. State of Karnataka), 1996 (5) SCC 539 (Sarvinder Singh Vs. Dalip Singh), AIR 2007 SC 1332 = 2006 (13) SCC 608 (Sanjay Verma Vs. Manik Roy), AIR 1948 Privy Council 147 (Gouri Dutt Maharaj Vs. Sukur Mohammed) and AIR 1973 SC 2537 = 1973 (2) SCC 705 (Rajender Singh Vs. Santa Singh). In these decisions, the Supreme Court dealt in detail Section 52 of the Transfer of Property Act. In the case on hand, the suits filed by the appellants, are still pending for trial. Hence, the argument of the learned counsel for the appellants/writ petitioners that the impugned order of the second respondent/District Collector is affected by the Doctrine of Lis Pendens, is not sustainable and in this case, Section 52 of the Transfer of Property Act will have no application to the facts of the present case. 26. Moreover, since the suits are pending before trial Courts, this Court does not go into the merits of the contention of the learned counsel for the appellants that the suits are not barred under Section 14 of the Tamil Nadu Land Encroachment Act, as admittedly, the trial Court has to decide upon the same based on oral and documentary evidence. 27. On a perusal of the entire records and the decisions cited supra and for the reasons stated above, we see no infirmity or illegality or perversity in the impugned order passed by the learned single Judge and the same does not warrant any interference by this Court. The Writ Appeals are therefore liable to be dismissed. Accordingly, the Writ Appeals are dismissed. No costs. The Miscellaneous Petitions are closed.