IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 21.06.2011 CORAM THE HONOURABLE MR. JUSTICE V. DHANAPALAN W.P.No.33163 of 2004 S.Kamatchi ... Petitioner versus 1. The Chairman Tamil Nadu Slum clearance Board Chennai – 600 005 2. S.Ambujam ... Respondents Prayer: Petition filed under Article 226 of the Constitution of India to issue a writ of certiorarified mandamus to call for the records made in impugned order in Na.Ka.No.G4/4072/95 dated 21.5.2004 passed by 1st Respondent and quash the said impugned order and further direct the 1st respondent to re-allot the flat in Door No.13/14, Brindavan street, Chennai 33 in the name of the petitioner pursuant to the order passed in O.S.No.4736/93 dated 28.03.2003. For petitioner : Mr.V.V.Sathya For respondents : Mr.Y.Bhuvanesh kumar for R1 Mr.V.Yurendrakumar for M/s. R.Subramaniam for R2 O R D E R Heard Mr.V.V.Sathya, learned counsel for the petitioner; Mr.Y.Bhuvanesh kumar for R1 and Mr.V.Yurendrakumar for M/s. R.Subramanian for R2. 2. Challenging the order dated 21.05.2004, passed by the 1st respondent and for grant of a consequential direction to the 1st respondent to allot the flat in Door Bo.13/14, Brindavan street, Chennai-33 in the name of the petitioner pursuant to the order passed in O.S.No.4736 of 1993 dated 28.03.2003, the petitioner has come up with the present writ petition. https://hcservices.ecourts.gov.in/hcservices/ 3. According to the petitioner, a flat in Door No.13/14, Brindavan street, Chennai-600 033 was allotted in favour of her deceased husband. After allotment, she was living with her husband and three children from 1975 in the said flat. On 21.01.1990 her husband died. During the life time of her husband she got her three daughters married and after their marriage, they are living separately. While so, during the month of November, 1991, third daughter Ambujam, the 2nd respondent herein along with her husband approached the petitioner and requested her to accommodate them in the flat till they find an alternative accommodation. Considering her daughter's position and her son-in-law who was jobless and were not in a position to pay the rent, the petitioner permitted them to reside with her in the flat. But in the course of time, the second respondent and here husband started acting as if they are the owners of the flat. Later, on enquiry, the petitioner came to know that the allotment of the flat was transferred in the name of her daughter the 2nd respondent. Objecting such transfer, on 06.01.1993 the petitioner submitted a detailed representation to the first respondent. On 02.03.1993, the 1st respondent issued a show cause notice to the second respondent and thereafter, no action was taken and therefore, the allotment made in favour of her daughter was not cancelled. The petitioner claims that the allotment made in the daughter's name without her knowledge, is illegal and the same should be cancelled. In the meantime, the petitioner filed a suit in O.S.No.4736 of 1993 on the file of I Assistant City Civil Court, Chennai against the respondents herein and two others, praying for grant of mandatory injunction, directing the 1st respondent herein to transfer the allotment of the suit property in her name and for perpetual injunction. The said suit was decreed on 28.3.2003 in respect of perpetual injunction, but dismissed in respect of mandatory injunction as the jurisdiction of Civil Court was barred under Section 65 of the Tamil Nadu Slum Areas (Improvement and Clearance) Act, 1972 (in short referred as Act). The 2nd respondent and her husband did not file any appeal against the said judgment and decree and it has become final. 3.1. After the said decree and judgment, the petitioner made a representation to the 1st respondent on 22.07.2003 to take appropriate action. But the 1st respondent neither took action nor passed any order. Therefore, in such circumstances, the petitioner filed a writ petition before this Court in W.P.No.3936 of 2003. On 02.12.2003, this Court passed an order directing the respondents to consider the representation of the petitioner and pass appropriate orders within six weeks from the date of the said order. Pursuant to the said orders, the 1st respondent passed the impugned order dated 21.05.2004. 3.2. As no appeal or revision remedy is available against the said impugned order, the petitioner having no other alternative or efficacious remedy, approached this Court under Article 226 of the https://hcservices.ecourts.gov.in/hcservices/ Constitution of India on the ground that the order is illegal, arbitrary and passed in contrary to the judgment and decree of the Civil Court. 4. First respondent has filed counter affidavit, wherein, it is stated as follows: 4.1. The tenement No.13/14 in the Brindavan Plan Scheme Area was originally allotted to one Mr.Subburaya Pandithar under the rental scheme on 21.05.1975. The said Subburaya Pandithar expired on 21.01.1990 and thereafter the tenement was re-allotted to the 2nd respondent as per G.O.Ms.No.897 of H.&U.D. Dept., dated 03.08.1990 vide proceedings in Na.Ka.No.1816/91/H.P.3 dated 14.05.1991 while converting it from the rental scheme to instalment scheme since the 2nd respondent is residing as an encroacher in this tenement from 28.08.1989 onwards. While so, the petitioner submitted a representation on 17.07.1992 stating that she had three daughters and the 2nd respondent who is one of her daughters, got illegally transferred the allotment in her favour and therefore, she objected to the said allotment made in favour of the 2nd respondent. Considering the above said representation of the petitioner, the 1st respondent issued a show cause notice dated 23.09.1993 as to why the allotment made in favour of the 2nd respondent should not be cancelled as the petitioner who is the wife of late Subburayan was alive while the allotment has been obtained by furnishing false statement. 4.2. It is further stated that the 2nd respondent challenged the above said notice dated 23.09.1993 before the I Assistant City Civil Court, Chennai in O.S.No.8070 of 1993 and obtained an ex parte decree on 30.6.1994, wherein, a decree was passed in favour of 2nd respondent and against the first respondent from cancelling the allotment made in favour of the 2nd respondent. In respect of the tenement, another suit in O.S.No.4736 of 1993 was filed by the petitioner against the 1st respondent and also as against the 2nd respondent and her husband Mr.Srinivasan. As per the judgment and decree dated 28.03.2003, the prayer sought for mandatory injunction to transfer the allotment of the suit property therein in the name of the petitioner from that of the deceased Subburayan was not granted, but however, the prayer for perpetual injunction restraining the 2nd respondent herein and her husband from dispossessing the petitioner herein from the suit property was granted. 4.3. The petitioner thereafter submitted a representation dated 21.07.2003 to the 1st respondent and thereafter a writ petition in W.P.No.33936 of 2003 was filed and the same was disposed by this Court by its order dated 02.12.2003 directing the Board to consider the said representation and pass orders within six weeks from the date of the order. Pursuant to the orders of this Court, the 1st respondent considered and passed the impugned order against which the present writ petition has been filed. It is also stated that during https://hcservices.ecourts.gov.in/hcservices/ the enquiry held by the officials of the Estate office of this Board in the above said tenement, it is stated by the 2nd respondent herein that her mother, who is the petitioner herein was residing in the above said tenement and also in her sister Mrs. Uma's house alternatively. 4.4. The impugned order has been passed after taking into consideration of both the decrees passed by the Civil Court. It is submitted that this Board had specifically stated in the impugned order that as there was a decree passed by the Civil Court against this Board from cancelling the allotment made in favour of the 2nd respondent, this Board is unable to allot the property in favour of the petitioner and in such circumstances, she was advised that if she obtains a Civil Court decree in her favour to transfer the allotment in respect of the above said tenement in her favour, the Board will take further action. Hence there is no infirmity in the order passed by the 1st respondent, hence they pray for dismissal of the writ petition. 5. Second respondent has also filed counter inter alia stating that it is an admitted fact that the property was allotted to her father by the 1st respondent. After his death on 21.07.1990, the petitioner who is the wife and three daughters of the original allottee including the 2nd respondent, being the legal heirs, succeeded to this property in equal shares. 2nd respondent denied that she and her husband sought temporary shelter and later got the allotment in her name. It is stated that the 2nd respondent has been living after her marriage in the same house with her father's consent. She paid necessary charges and the allotment was changed to her name only on application and enquiry after father's demise. Even during her father's lifetime, she was paying the requisite charges, hence the allegation that she got the allotment in her name without petitioner's knowledge is false and baseless. In fact, the 1st respondent's order dated 14.05.1991 and other documents filed before the City Civil Court in O.S.No.4736/93 would reveal the falsity of the petitioner's claim for re-allotment in her name as per judgment and decree made in O.S.No.4763 of 1993 dated 28.03.2003 as it was decreed only in respect of perpetual injunction. 2nd respondent also denied the allegation that on 09.04.2011 she had thrown her mother out and it was made without any basis. Therefore the petitioner's claim has been rightly rejected by the 1st respondent in the impugned order. She has further stated that she is taking care of her mother during her regular visits to her house. Therefore, prays for dismissal of the writ petition. 6. It is the contention of the learned counsel for the petitioner that she was continuing in the allotted flat after the demise of her husband and she is entitled to succeed as a legitimate legal heir of the original allottee. On the contrary, 2nd respondent has got the transfer of the allotment in her favour against the https://hcservices.ecourts.gov.in/hcservices/ wishes of the petitioner's husband and without the knowledge of the petitioner. He would further submit that re-allotment was to be made in the name of the petitioner and the impugned order was passed contrary to the judgment and decree of the Civil Court. 7. Per contra, learned counsel appearing for the 1st respondent would submit that the 1st respondent has rightly proceeded against the parties concerned by issuing a show cause notice. Thereafter the 2nd respondent has moved the Civil Court challenging said show cause notice which was decreed in favour of the 2nd respondent and further the suit filed by the petitioner for perpetual injunction and mandatory injunction has been decreed in part to the extent of her continuance in the flat and therefore the 1st respondent has no jurisdiction to decide the matter contrary to the judgment of the Civil Court and has rightly rejected the claim of the petitioner, which cannot be faulted with. 8. Learned counsel for the 2nd respondent would contend that even during the life time of her father, she was staying in the same house by paying necessary charges to the 1st respondent Board and she continued to stay in the same house even after the death of her father as per her father's wish and consent. Therefore, after the death of her father, she applied for transfer of allotment after paying necessary charges and the allotment was also transferred in the name of the 2nd respondent. He has further submitted that the petitioner and the 2nd respondent are residing in the same house and she is taking care of her mother also. 9. I have gone through the entire submissions and the circumstances under which the petitioner has come before this Court after the rejection of the claim of the petitioner by the 1st respondent by the impugned order. Admittedly, the flat in question was allotted in favour of Late Subburayan Pandithar under the rental scheme on 21.05.1975 by the 1st respondent Board. A perusal of the impugned order would reveal that the claims of the petitioner as well as the 2nd respondent was considered by the 1st respondent and a show cause notice was issued on 23.09.1993 as to why the allotment made in favour of the 2nd respondent should not be cancelled as the petitioner who is the wife of late Subburayan was alive and the same has been obtained by furnishing a false statement. The said show cause notice was challenged by the 2nd respondent before the I Assistant City Civil Court, Chennai in O.S.No.8070 of 1993 and she obtained an ex-parte decree on 30.06.1994 restraining the 1st respondent Board from cancelling the allotment made in favour of the 2nd respondent. It is also seen that the petitioner moved the City Civil Court by filing a suit in O.S.No.4736 of 1993 against the 2nd respondent and her husband M.Srinivasan. The said suit was decreed in part on 28.03.2003 declining the mandatory injunction, to direct the first respondent to transfer the allotment of the suit property in the name of the petitioner from that of the deceased Subburayan, but however, https://hcservices.ecourts.gov.in/hcservices/ granted the prayer for perpetual injunction restraining the 2nd respondent herein and her husband from dispossessing the petitioner from the suit property. 10. In the light of the above circumstances and in view of the decree passed by the civil Court, it is to be seen as to whether the impugned order passed by the 1st respondent suffers from legal infirmities? 11. Admittedly, the petitioner as well as the 2nd respondent have moved the City Civil Court and in the suit filed by the 2nd respondent an ex parte decree was granted against the 1st respondent Board from cancelling the allotment. Therefore the 2nd respondent's right from cancelling the allotment is protected and in the case of the petitioner, the prayer for mandatory injunction for transferring the allotment in her favour was not granted, but the injunction restraining the 2nd respondent from dispossessing the petitioner from the suit property was granted. If that is so, the 1st respondent has rightly rejected the claim of the petitioner to cancel the allotment in favour of the 2nd respondent and re-allot the same in her favour while suggesting the petitioner to get any Civil Court decree in her favour in order to consider her claim for reallotment. 12. On analysing the impugned order and in the light of the Civil Court decree, I do not find any infirmity in the impugned order passed by the 1st respondent. However, it is to be noted that the claim of the petitioner made at the age of 87 in a very pitiable condition, languishing for her livelihood and for shelter in the place where her husband stayed with her till his death. Though the 2nd respondent has categorically stated that she is taking care of the petitioner who is none other than her mother, this Court after hearing the learned counsel on either side, directed the 2nd respondent to file an undertaking before this Court and accordingly an affidavit sworn to by the 2nd respondent dated 21.06.2011 filed, which reads as follows: "1. I S.Ambujam w/o Srinivasan Hindu aged about 49 years residing at No.13/14 Brindhavan street West mambalam Chennai-33, do hereby solemnly affirm and sincerely state as follows: I am the 2nd respondent in the above writ petition, I undertake to take care of my mother the petitioner in the above writ petition fully during her lifetime. I state that my mother agrees to continue residing with me during her lifetime" https://hcservices.ecourts.gov.in/hcservices/ 13. In the light of the above undertaking given by the 2nd respondent and considering the age of the petitioner and her condition, as well as the considering the decree for perpetual injunction restraining the 2nd respondent and her husband from dispossessing the petitioner from the suit property and also the fact that the 2nd respondent would take care of her mother during her lifetime, while recording the undertaking given by the 2nd respondent she being a responsible daughter of her mother, who is aged about 87 years, and will look after her without any lapses during her entire life time truly to her conscience, the 2nd respondent is directed to act upon her undertaking by looking after her mother with love and affection without any lapses. 14. Accordingly, this writ petition is disposed of with the above observation. No costs. However, it is always open to the petitioner to approach this Court if there are any lapses on the part of the 2nd respondent contrary to her undertaking. Sd/- Asst. Registrar //true copy// Sub Asst.Registrar kpr To 1. The Chairman Tamil Nadu Slum clearance Board Chennai – 600 005 1 cc to Mr.M.V.Venkataseshan, Advocate, Sr.No.35415 1 cc to M/s.Y.Bhuvanesh Kumar, Advocate, Sr.No.35517 1 cc to Mr.R.Subramanian, Advocate, Sr.No.35472 W.P.No.33163 of 2004 TAM {CO} TP/8.7.2011. https://hcservices.ecourts.gov.in/hcservices/