Allowed

M.Devika v. Tamilnadu Housing Board

Madras HC26 Nov 2019WP/4456/2015

Case brief

AI extract

What is this about?

The Court allowed the writ petition, setting aside the Tahsildar's order declaring land belongs to the Housing Board and the Housing Board's eviction notice. The Court held these orders are contrary to the Civil Court's finding that the land is Government poromboke land. The Government can still evict the petitioner through due process.

What did the court decide?

Impugned orders of the Tahsildar and the Tamil Nadu Housing Board directing eviction were set aside. Registry directed to mark a copy to the District Collector.

M.Devika Vs Tamilnadu Housing Board — Pension and Retirement Benefits | Madras HC (2019)

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IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 26.11.2019 CORAM: THE HON'BLE MR.JUSTICE V.BHARATHIDASAN W.P.No.4456 of 2015 and M.P.No.1 to 3 of 2015

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M. Devika ... Petitioner Vs. 1. Tamil Nadu Housing Board, rep. by its Executive Engineer and Administrative Officer, Special Planning Division-I, Ashok Nagar, Chenani 600 083 2. The Tahsildar, Aminjikarai Taluk, Chenani 600 107. ... Respondents

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PRAYER : Petition filed under Article 226 of the Constitution of India, praying to issue a Writ of Certiorari to call for the records of the second respondent made in his proceedings in A1/2509/2014-2 dated 09.01.2015 and consequential proceedings of the first respondent made in Ka.No.Ci.Thi.Ko/504/07 dated 09.02.2015 and quash the same as illegal, erroneous and without authority.

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This writ petition has been filed challenging the order passed by the second respondent, holding that the land in Survey NO.249/3A1A , Part 73, Villivakam Village, to an extent of 30 cents, belongs to the Tamil Nadu Housing Board, and the

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consequential order passed by the first respondent directing the petitioner to vacate the premises.

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According to the petitioner, the above said land was in continuous possession and enjoyment of the petitioner for more than 75 years. Earlier, a land acquisition proceedings has been initiated by the Government for Tamil Nadu Housing Board, in respect of the neighbouring property of the above said survey numbers, and the property in occupation of the petitioner was not acquired. Earlier, Tamil Nadu Housing Board has taken steps to evict the petitioner from the above said land and the petitioner filed a suit in O.S.No.2889 of 2000 on the file of the City Civil Court, Chennai for declaration to declare that the petitioner has perfected his title by adverse possession and also for a consequential injunction. In the above suit, the trial Court has given a finding that the land does not belong to the Housing Board, and it is also not subjected to any land acquisition, it is a Government poromboke land, and the petitioner is only an encroacher in the above property and he can be evicted only by the Government after following due process of law. Challenging the above Judgment and Decree , the Tamil Nadu Housing Board filed an appeal in A.S.No.618 of 2008 on the file of the Fast Track Court No.1, Chennai and the lower appellate Court dismissed the appeal by a judgment and decree dated 23.12.2019 and the second Appeal filed by the first Respondent/Housing Board was also dismissed for non prosecution. So far, the Second Appeal has not been restored.

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Thereafter, once again, the respondents taken steps to evict the petitioner, and hence he was constrained to file a writ petition in W.P.No.18187 of 2013, and this Court by an order dated 07.11.2013, directed the Tahsildar to survey the subject property based on the documents and also survey records, and also taken in to consideration of the award passed by the land Acquisition Officer, in the land acquisition proceedings. It is Further stated that in case, the survey reveals that the property belongs to the petitioner, there will be no claim for the Housing Board, similarly, in case the survey reveals that the property belongs to the Housing Board, the petitioner should vacate the property and hand over vacant possession to the Tamil Nadu Housing Board. Pursuant to the order passed by this Court, the Tahsildar passed the impugned order holding that the land belongs to the first respondent Housing Board, and the first respondent issued a notice to the petitioner direct him to vacate the premises. Now, challenging both the orders, the present writ petition has been filed.

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The first respondent/Housing Board filed a counter affidavit stating that the Government has transferred an extent of 84.15 Ac of land in Survey NO.249/3A1A3 of Villivakkam village to the Tamil Nadu Housing Board for providing shelters to the economically weaker section with world bank financial assistance. Since there is no direct access to the main road, the Government also acquired the patta land in some of the survey numbers to an extent of 3.81 Acres available in between the above land on the existing main road and the possession was also taken by the TamilNadu Housing Board on 13.10.1992. Thereafter, a layout was also approved by the MMDA in the year 1981. Earlier, in a suit filed by the petitioner in O.S.No.2889 of 2000, the trial Court by an order dated 23.07.2008 disposed the suit holding that the petitioner is an encroacher of 30 cents in Survey No.249/3A1AB, and the Government was directed to take steps to evict the petitioner under the land Encroachment Act, after following due process of law. Against the judgment and decree passed by the Additional District Judge, Fast Track Court No.1, Chennai, the Housing Board filed a Second Appeal in S.A.No.468 of 2010, on the file of this Court and the same was dismissed for non prosecution on 16.08.2011 and to restore the appeal, the Housing Board filed an application and the application is still pending. According to the first respondent, the writ petitioner has no right to encroach the land belonging to the Housing Board. As per the order passed by this Court in W.P.No.18187 of 2013 dated 07.11.2013, the Tahsildar has conducted an enquiry based on the document and found that the land belongs to the Housing Board. Hence, based on that order only the Tamil Nadu Housing Board issued a notice asking the petitioner to vacate the premises.

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I have considered the rival submissions and perused the materials available on records carefully.

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In an earlier round of litigation, in a civil suit filed by the petitioner in O.S.No.2889 of 2000, the trial Court has given a finding that there is no evidence to show that the land was acquired by the Housing Board and the land belongs to the Government and the petitioner has been in possession of the property as an encroacher. Hence, he can be evicted only by the Government under the Land Encroachment Act on following due process of law. The relevant portion of the judgment reads as follows: -

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,Wjpahf thjpfs; jug;gpy; thrh/1?d; tha;bkhHp rhl;rpak;, th/rh/M/1 Kjy; th/rh/M/11 tiua[s;s Mtz';fs;. gp/rh/1/d; rhl;rpak; kw;wk; gp/rh/M/1 kw;Wk; gp/rh/M/2 Mfpaitfs; ed;F ghprPyid bra;jjpy; jhth tHf;Fiuapy; tpthpf;fg;g;lLs;s rh;nt vz;/249-3v1v-ghh;l; vz;/73. tpy;ypthf;fk; fpuhkj;jpy; cs;s 30 brd;l; epy fhypaplk; muRf;F brhe;jkhdJ vd;Wk;. nkw;go epyj;jpy; thjpfs; th/rh/M/3 Mtzj;jp;d; nghpy; ** Mf;fpukpg;ghsh;fs;** vd;w Kiwapy; RthjPdj;jpy; ,Ue;J tUfpwhh;fs; vd;W bjspthf mwpa KofpwJ/ mt;thW mth;fis jhth brhj;jpy; ,Ue;J btspnaw;Wk;bghUl;L rl;lg;gphpt[ 7 epy Mf;fpukpg;g[r; rl;lg;go chpa mwptpg;g[ bfhLj;j gpwnf. btspnaw;wk; bra;a ,aYk;/ Mdhy; Mf;fpukpg;ghsh;fis thjpfis btspnaw;wk; bra;a[k; bghUl;L chpa eltof;if vLf;fhj fhuzj;jpdhy;. thjpfis rl;lj;jpw;F Kuzhf jhth brhj;jpypUe;J btspnaw;wk; bra;a ,ayhJ vd Kot[ bra;J. jhth tHf;Fiuapy;thjpfs; nfhhpa ghpfhu';fs; mth;fSf;F fpilf;fj;jf;fJ vd;W Kot[ bra;J vGtpdh 1f;F thjpfSf;F rhjfkhft[k;. gpujpthjpfSf;F vjpuhft[k; ;tpilaspf;fg;gLfpwJ **

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Challenging the above judgment and decree, the Housing Board filed an appeal in A.S.No.618 of 2008 and the appeal also came to be dismissed by a judgment and decree dated 23.12.2009. It is stated that a Second Appeal has been field against the same, and that was dismissed for non prosecution, as on date, the second appeal is not restored.

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It is a clear finding by the Civil Court that the land does not belong to the Housing Board, but it is only a Government poromboke land and the petitioner has encroached the Government land and can be evicted by due process of law by invoking the provisions of Land Acquisition Act. Unfortunately, the judgment of the Civil Court was not brought to the notice of this Court while passing earlier order in W.P.No.18187 of 2013. In those circumstances, this Court had directed the Tahsildar to measure the property to find out whether the land belongs to the Housing Board or to the petitioner. But in view of the categorical finding given by the trial Court, which was also confirmed in the appeal that the land does not belong to the Housing Board. In the above circumstances, the order passed by the Tahsildar cannot prevail over the judgment of the Civil Court, and the order passed by the Tahsildar holding that the land belongs to the Housing Board is totally contrary to finding of the Civil Court. Hence, the same is liable to be set aside

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and the consequential order passed by the Tamil Nadu Housing Board directing the petitioner to vacate the premises also is liable to be set aside .

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However, in view of the finding of the trial Court, the land is the Government poromboke land, it is always open to the Government to evict the petitioner by following due process of law. At this stage, the learned counsel for the first respondent Housing Board submits that now they are taking steps to get the Second Appeal restored, since, as on date the second appeal stands dismissed, no relief can be granted to the Housing Board at this stage. If at all the second appeal is restored and allowed, it is always open to them to take appropriate steps in accordance with law.

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With the above directions, this writ petition is allowed. No costs. Consequently, connected miscellaneous petitions are closed. The Registry is directed to mark a copy of the order to the District Collector, Chennai immediately.

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Sd/Assistant Registrar(CS III) //True Copy// Sub Assistant Registrar mrp To 1. The Executive Engineer and Administrative Officer, Tamil Nadu Housing Board, Special Planning Division-I, Ashok Nagar, Chennai 600 083 2. The Tahsildar, Aminjikarai Taluk, Chenani 600 107. copy to The District Collector, Chennai. +1cc to Mr.A.Arumugam Advocate sr98298 +1cc to Mr.M.Baskar Advocate sr99033 +1cc to Government Pleader sr99441 W.P.No.4456 of 2015 aa11/02/2020

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M.Devika v. Tamilnadu Housing Board

Case brief

What is this about?

What did the court decide?

M.Devika v. Tamilnadu Housing Board

Case brief

What is this about?

What did the court decide?

What the court decided

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