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Memorandum of Writ Appeal

IN THE HIGH COURT OF JU DICATURE AT MADRAS

MADURAI BENCH
(Special Original Jurisdiction)

W.A. No. of 2024

W.P(MD) No. 12390/2021

1. N. Sakthivel,
S/o. N.Natchimuthu,
No.67, Jawahar Puram, S.C Colony,
K.Pudur,
Madurai-07. …...Appellant / 3rd Respondent

Mariammal(Died)

2. N.Ravi,
No. C-18/5, D.R.O. Colony,
K. Pudur,
Madurai. …...Petitioner / Respondent

Vs.

1. The District Collector,

Madurai District,
Madurai.

2. The Executive Engineer,

Tamil Nadu Urban Habitat Development Board,
Madurai Circle,
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No.169, K.K. Nagar Main Road,

Madurai-20.

3. N.Pandi

4. Gurusamy

5. Karthikeyan

6. Maladevi

7. Muthulakshmi

8. Lokesh Pandi

9. Balaji
…...Respondent/ Respondent 1 to 2 & 4-9

The Appellant above named begs to prefer this Memorandum of Writ Appeal against
the order passed by his Lordship Hon’ble Mr. Justice N. Ananth Venkatesh in W.P.
(M.D) No. . 12390/2012 dated 16.11.2023 on the following among other :

Grounds

1. The order of the Learned Judge is against law and weight of Evidence.

2. The Learned Judge failed to see that Mr. V. Natchimuthu the maternal

grandfather of the Appellant was a Sweeper worked in Tamil Nadu Police

Department. During the year 1990 the Executive Engineer Madurai Division

Tamil Nadu Slum Clearance Board had allocated a housing plot bearing
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T.S No. 2720, Door No. 67, Ward-12, Harijan Colony, Maariyamman Koil

Street, Jawaharpuram Main Road, K. Puthur, Madurai-7 in favour of Mr.

Natchimuthu and had put up a concrete house thereon and residing along with

his wife and children. He also paid the EMI to the Slum Clearance Board from

his salary and drawn up electricity, water supply and drainage connection in the

house.

3. The learned Judge failed to see that Mr.Natchimuthu had only one daughter

namely Vellammal and Vellammal had 4 sons namely Pandi, Sakthivel the

Appellant herein , Ravi and Arumugam and a daughter namely Angammal. The

eldest brother Pandi was also allocated to the adjacent property of my

grandfather bearing Door No. 241 in the year 1990 and he is residing there

along with his wife and children.

4. The Learned Judge failed to see that Mr.Natchimuthu had purchased the nearby

property of Mrs. Rajeshwari and tagged the same with his plot, allocated

northern portion of the plot in favour of Arumugam and western side portion of

the plot in favour of Ravi the 2nd Respondent herein on 10.9.2007 .

5. The Learned Judge failed to see that M. Natchimuthu had executed a

settlement deed in respect of 300 Sq. ft of land in favour of the Appellant by a

registered settlement deed in Doc No. 3962/2007, I the Appellant had

demolished the structure and put up a house in the property after getting plan

approval from the Madurai Corporation in KM No. NE5/22351/08, BUu

ANAI No. 409/2008 dated 09.09.2008 and residing thereon along with the
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family members. My two brothers namely Arumugam and Ravi are also

residing in the properties given to them in the same plot.

6. The Learned Judge failed to see that t after the construction of new house, my

brothers N. Pandi, N. Ravi(2nd Respondent) and Guna and Rani the sons and

daughter of N. Pandi made an attempt to trespass into the property and tried to

demolish the toilet portion of the property. Thus, the appellant herein filed a

suit in O.S No. 333/2020 on the file of the District Munsif Court, Madurai

against his brother’s nephew and niece. As they have not chosen to enter

appearance even after the receipt of the summons, they were set exparte and on

23.1.2018 the suit was decreed as prayed for. The exparte set aside petition

filed by the defendant was also dismissed. Thereafter Civil Miscellaneous

Appeal was filed before the is pending before the Sub Court Madurai along

with the condone delay application.

7. The learned Judge failed to see that in order to trouble the Appellant further ,

Mrs. R.Jothi the wofe of the 2 nd Respondent Ravi had filed a Writ Petition in

WP No. 931 of 2021 before this Hon’ble Court to issue Writ of Mandamus

directing the Respondent thereon to remove the encroachment in the pathways

allotted by the Tamil Nadu Slum Clearance Board, Madurai in TS No. 2720

at Jawaharpuram, K. Pudur, Madurai with the bald allegations that the

grandmother Maariyamma was the allottee of the Slum Clearance Board plot,

the grandfather Nachimuthu has no right to convey the property to the

Appellant by way of settlement deed, the settlement deed itself is a fraud and
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fabricated, in the settlement deed the property earmarked for public utility has

been included and I have encroached upon the Public pathway, put up toilet,

compound wall and gate and thereby restricting the public movement.

8. The Learned Judge failed to see that on 23/11/2021, this Hon’ble Court was

pleased to dispose of the Writ Petition in W.P.No. 931/2021 writes the

following directions “Considering the limited scope of the prayer now sought

for by the Petitioner, without expressing any opinion on the claim made by the

Petitioner, this Writ Petition is disposed of with a direction to the Respondents

3 and 4 to consider the representation of the Petitioner dated 05.12.2020, if not

considered earlier and if there is any encroachment as claimed by the

Petitioner, appropriate action shall be taken for removal of the same, after

affording due opportunity of hearing to the Petitioner, Fifth Respondent and all

other parties concerned and also by due process of law, within a period of

twelve weeks from the date of receipt of a copy of this order. No costs.

Consequently, connected miscellaneous Petitions are closed”.

9. The Learned Judge failed to see that the 2 nd Respondent in his proceedings in

Naka No. 2506/A3/2022 dated 10.02.2023 passed an order directing the

Appellant to remove the encroachment made in the property within 15 days

from the date of order or else forceful eviction will be taken.

10. The Learned Judge failed to see that the Appellant herein filed Writ Petition in
WP(MD)No. 4468 of 2023 challenging the order of the 2 nd Respondent in
Na.Ka.No. 2056/A3/2023 dated 10.02.2023 and on 09.03.2023 this Hon’ble
Court was pleased to allow the Writ Petition on the reasons that the order of the
1st Respondent dated 10.02.2023 is not in accordance with the order passed in
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W.P(MD).No. 931 of 2021 dated 23.11.2022 directed the 2 nd Respondent to

pass reasoned order after affording opportunities to all the parties concerned
11. The Learned Judge failed to see that the 2 nd Respondent and submitted the

written explanation. But the 1st Respondent in his proceeding

Na.Ka.No.484/A5/2023 dated 08.05.2023 once again the Appellant directed

to remove the obstruction in the pathway within 15 days stating that the

Appellant obstructed the pathway to the house of his brother N.Pandi and

Mrs.Jothi the wife of 2nd Respondent.

12. The Learned Judge failed to see that the Appellant herein filed writ petition in

W.P(MD)No. 12620 of 2023 challenging the order of the 2 nd Respondent dated

08.05.2023 and on 27.07.2023 this Hon’ble Court was pleased to dispose of the

writ Petition with a direction to the 2 nd Respondent to conduct survey by the

Tahsildar and Surveyor and in case the Tahsildar ultimately find that the

Petitioner is in encroachment by putting up any construction, it is open to the

Estate Officer to proceed further under the provisions of the Tamil Nadu Public

Premises/Eviction of unauthorized occupants) Act 1975 to remove the

encroachment by the Petitioner.

13. The Learned Judge failed to see that the original writ petition Mrs.

Mariammal is the maternal ground mother of the Appellant and the Appellant

was staying along with Maternal Grand parents Natchimuthu and Mariammal

till there las days in the same house and Mrs. Mariammal never demanded the

allotment of housing board property in her favour and she was well aware of

the fact that her husband Mr. Natchimuthu as the real owner and allotee of the

property executed a settlement deed on favour of Respondent Appellant on

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29.01.2024 and thereafter the Appellant herein applied for plan approval,

constructed a new building and continue to stay along with grandparents.

14. The Learned Judge failed to see that on 01.12.1992, the Plot No.240 was

allocated in favour of Mr. Natchimuthu by the Executive Engineer of the Slum

Clearance Board by fixing the sale consideration of the property into

Rs.__________ and paid the advance sum of Rs.280/- and the EMI was fixed

at Rs. 27/-.

15. The Learned Judge ought to have held that after the allotment order,

developments have been made and name of Mrs. Mariammal was added with

the name of original allottee.

16. The Learned Judge ought to have held that once the Tamil Nadu Slum

Clearance Board had allotted the property in favour of Mr. Natchimuthu,

subsequent name added in the files of the Slum Clearance Board will not have

any effect.

17. The Learned Judge failed to see that during _______ Mrs. Mariammal was

diagnosed with cancer and took treatment in Govt. Rajaji Hospital.

18. The Learned Judge failed to see that when Mrs. Mariammal was surviving with

side support, Mr. Pandian, the older brother of the Appellant took Mrs.

Mariammal to Sivagangai and obtained her signature and managed to filed on

the file of the Sub Court, Madurai, a suit in OS No. UN of 2019 and W.P No.

12890 of 2021 before this Hon’ble High Court alleging that she was the

original allottee of the plot, willing to pay the EMI and thus sought for reliefs
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directing the Slum Clearance Board to execute sale deed in her favour after

recording the full sale consideration.

19. The Learned Magistrate failed to see that on________ deceased Mrs.

Mariammal passed away due to cancer and old age and thereafter the 2 nd

Respondent herein filed impleading petition in W.P No. 12390 of 2021 to

implead himself as party and also filed application in IA No. 445 of 2021 in

QS. No. UN of 2019 to condone the delay of _______ days in representing the

suit papers placing reliance on a bogus will of Mrs. Mariammal dated

22.07.2022.

20. The Learned Judge ought to have held that the relief sought for in the writ

petition in W.P. No. 12390 of 2021 is to direct the 2 nd Respondent to execute

sale deed and since the relief sought for in the writ petition is an akin to the

judgment and decree of specific performance thus relief is not amenable to the

Petitioner.

21. The Learned Judge ought to have given an opportunity to the Appellant to

place his defence in the writ petition and the action of the Learned Judge to

hear the main writ petition immediately after allowing impleading petition filed

by the 2nd Respondent is unjust and improper.

22. The Learned Judge erred in holding that when Mrs. Mariammal is the original

allottee of the flat, it is not known as to how her husband the grandfather of 3 rd

Respondent can execute settlement deed to the 3 rd Respondent with respect to

the subject property.

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23. The Learned Judge erred in holding that the settlement deed will not in any

way bind the Slum Clearance Board and they have to strictly go by the original

allotment made by them.

24. The Learned Magistrate ought not to have given a go bye to the suit for specific

performance filed by the deceased Mariammal and converted the order of the

writ petition as judgment of decree of writ petition.

25. The Learned Judge ought not to have decided the validity of civil suit in QS

No. 333 of 2015 in the writ petition.

26. The Learned Judge failed to consider that late Mr. Natchimuthu had executed a

separate settlement deed in favour of Mr. Ravi and allocated a portion in

respect of the same property. Thus, the order permitting the legal heirs of

deceased Mariammal to approach the 2nd Respondent and pay the entire amount

that is due and payable. On receipt of the same, the 2 nd Respondent shall

execute the sale deed in the name of the legal heirs of the deceased Mariammal.

After the legal heirs approach the 2 nd Respondent and pay the sum that is due

and payable, the 2nd Respondent shall complete the process within a period of 4

weeks thereafter is unsustainable.

Therefore, it is humbly prayed that this Hon’ble Court may be

pleased to allow this Writ Appeal and set aside the order passed in W.P No.

12390 of 2021 dated 16.11.2023 and thus render justice.

27. It is submitted that the order of the 1 st Respondent in Na.Ka No.484/A5/2022

dated 08.05.2023 is illegal and erroneous and therefore I have no other

efficacious remedy except to approach this Hon’ble Court by invoking the

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extra-ordinary jurisdiction guaranteed under Article 226 of the Constitution of

the India to quash the auction notice on the following among other

GROUNDS

1) The impugned order of the 1st Respondent is illegal and erroneous and violative

of principles of Natural Justice.

2) In pursuance of the order of this Hon’ble High Court in WP(MD)No. 931 of

2021 dated 23.11.2022, the 2nd Respondent the Estate Officer Of the Tamil

Nadu Urban Habitat Development Board, the competent authority under

Section 3 of the Tamil Nadu Public Premises Act to decide unauthorized

occupation in the public premise, had issued a notice dated 29.12.2022 calling

upon the Petitioner to attend the enquiry on 06.01.2023 at 4 PM. Accordingly

the Petitioner herein attended the enquiry on 06.01.2023 and submitted detailed

explanation. Once the competent authority under the statute has seized of the

matter, the 1st Respondent is not entitled to conduct parallel enquiry and pass an

order of eviction. Thus, the impugned order of the 1 st Respondent is per se

illegal and without jurisdiction.

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3) As the 1st Respondent herein abruptly usurp the power of the Competent

authority, under the provision of the Tamil Nadu Public Premises Act and pass

an impugned order after, the Estate officer commenced the enquiry, the

Petitioner is deprived of his right to prefer Appeal against the order of the

Estate officer Under Section 9 of the Tamil Nadu Public Premises Act and thus

the impugned order is perverse.

4) The Writ Petition in WP(MD)No. 931 of 2021 was filed by the Respondent,

directing the Respondents thereon the remove the encroachment made in the

public pathway allotted by the Slum Clearance Board in TS No. 2720 at

Jawaharpuram, K. Pudur, Madurai with a dubious allegation that the petitioner

herein constructed compound wall, toilet and gate in public pathway in TS No.

2720 at Jawaharpuram, K. Pudur, Madurai and for the removal of the

encroachment the representation of the 2 nd Respondent dated 05.12.2022 has to

be considered. As per the order passed in the WP(MD)No. 931 of 2021 dated

23.11.2021, the Respondents 3 and 4 were directed to consider the

representation of the Writ Petitioner thereon dated 05.12.2020. If not

considered earlier and if any encroachment made in the public pathway,

appropriate action shall be taken for removal of the same after affording

opportunity to Writ Petitioner thereon and the 5th Respondent (the Petitioner

herein) and all other parties thereon. But in the 1 st Respondent herein brushed

aside the original plea of the 2 nd Respondent and erroneously came to a

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conclusion that the petitioner is an obstructor in respect of the pathway leading

to the house of his brother N. Pandi and the 2nd Respondent herein.

5) Mr. Natchimuthu the paternal grandfather of the petitioner was the original

allottee in Serial No. 240 of the allotment order and the grandfather conveyed

300 Sq. Ft of the said allotted property in favour of the Petitioner by a

registered settlement deed in Doc No. 3962/2007. The Petitioner had

demolished the structure and put up a house in the property after getting plan

approval from the Madurai Corporation in KM No. NE5/ 22351/ 08,

BUuANAI No. 409/2008 dated 09.09.2008 and residing thereon along with his

family members. Thus, the 1st Respondent exceeded his jurisdiction while

coming to a conclusion that the construction made by the petitioner as per the

approved plan would tantamount to encroachment of the pathway of the private

parties.

6) The 1st respondent miserably failed to identify of the exact portion of the

pathway leading to the houses of the N.Pandi and 2 nd Respondent in which the

Petitioner herein encroached upon and causing obstruction, and the extent

length and width of the encroachment.

7) In the earlier order of the 1st Respondent dated 10.02.2023, it was recited that in

violation of the approved plan a toilet was constructed and in the rest of the

land, the petitioner herein put up a door and utilizing the same as pathway.

Now, the 1st Respondent shifted his stand and has come into a conclusion that
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the encroachment as specified in the earlier order are only the pathway to the

2nd Respondent and Mr.N. Pandi.

8) Already the petitioner herein filed a Suit in O.S.No. 333 of 2020 on the file of

District Munsif Court, Madurai to grant permanent injunction restraining the

family members and his brothers including the husband of the 2 nd Respondent

from demolished the toilet portion of the house by treating the same as the

common pathway. The suit was already decreed as prayed for. The Appeal

preferred by the husband of the 2nd Respondent and others is still pending.

Thus, the impugned order branding the petitioner as encroacher in the portion

of the property covered under decree of the Civil Court would amounts to

diluting the decree of the Civil Court and the order is nothing but sitting over

the Judgment and decree of the Civil Suit.

9) The 1st Respondent miserably failed to specify as to whether the imaginary

pathway is the public pathway or lying in the private land. The failure

invalidates the impugned order.

10) When the 3rd Respondent filed the Writ Petition in W.P No. 931/2021 seeking

for removal of the encroachment alleged to have been made by the Petitioner in

T. S. No 2720, Jawaharpuram, K. Puthur, by constructing compound wall,

toilet and a gate in the public pathway by restricting the public movement, the

failure of the 1st Respondent to ascertain the existence of public pathway in

which compound wall, toilet and gate were constructed, and the same are
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obstructing the free movement of the public, would render the impugned order

invalid.

Therefore, it is humbly prayed that this Hon’ble High Court may be pleased to

issue WRIT OF CERTIORARI calling for the records pertaining to the impugned

eviction order passed by the 1st Respondent in Na Ka No. 484/A5/2023 dated

08.05.2023 and quash the same and thus render justice.

Therefore, it is humbly prayed that this Hon’ble High Court may be pleased to

Stay in all further proceedings in pursuance of the order of the 1st Respondent in Na

Ka No. 484/A5/2023 dated 08.05.2023 pending disposal of the Writ Petition and thus

render justice.

Solemnly affirmed at Madurai, this BEFORE ME,

the day of May, 2023 and
signed his name in my presence.

Advocate : Madurai.