Madras High CourtWP(MD)/172/2018dismissed

T.Pushpanathan, Head Master v. The Director Of Elementary

2021-11-23Honourable Dr Justice Anita Sumanth7 pages

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 14.09.2021

CORAM

THE HONOURABLE MR.JUSTICE T.S.SIVAGNANAM and THE HONOURABLE MR.JUSTICE P.VELMURUGAN in Writ Appeal (MD) No.1064 of 2014 1.S.Panjavarnam 2.Manimurugan 3.Susila 4.Ramila 5.S.Krishnadevi 6.K.Kanagavalli 7.Kathiresan 8.Selvi 9.R.Pappammal 10.V.Meenakshi 11.Vijayakumar 12.Pushpavalli 13.Annalakshmi 14.Thangeswaran 15.R.Ramuthai 16.Vairamani 17.R.Rajendran 18.Amutha 19.Selvi 20.M.Dhanalakshmi 21.V.Saraswathi 22.Ram Babu 23.Vasantha 24.Savithri 25.Usha 26.Lalitha 27.Nirmala 28.Padma 29.Lakshmi 30.Jaya 31.Durga 32.Kalavathi 33.B.Devi 34.Rajeshwari 35.Sumathi 36.Gnanam 37.Muthulakshmi 38.Muthu 39.R.Ramamoorthy 40.Mariammal 1/7

41.Muthukumar 42.Banumathi 43.Sagunthala 44.Selvi 45.Divya 46.T.K.Saroja 47.K.G.Lakshmi 48.Vimala 49.N.Geetha 50.K.Krishnaveni 51.Radha 52.M.Visalakshi 53.L.Chellammal 54.S.Chellammal 55.R.A.Lakshmi 56.Renuka Devi 57.Kotta Malai 58.Deivanai 59.Samayamuthu 60.Panchavarnam 61.Kuncharam 62.Muniyamal 63.Mareeswari 64.Karuppaee 65.Mahalakshmi 66.Parameshwari 67.M.Vijaya 68.Nagajothi 69.Chithra 70.Panchavarnam 71.G.Vijaya 72.D.Pappa 73.Muthu Pandi 74.Pandiyammal 75.Ponnumayil 76.Jeeva 77.R.Meenakshi 78.Muniyammal 79.Manimekalai 80.Pappathi 81.Thirukkammal 82.Krishnammal 83.Maruthavalli 84.Chellappandiyammal 85.Meenakshi Sundari 86.Pothumani 87.B.Dhanalakshmi 88.Indra 89.Santhi 90.R.Padmavathy 91.P.S.Rajeshwari 2/7

92.K.V.Devi 93.Pandiyammal 94.Vasantha 95.S.Subbu Lakshmi 96.Parameswari 97.Chellamani 98.Valli 99.Subbulakshmi 100.Dhanalakshmi 101.Manju 102.Chithra 103.Rajeshwari 104.Durai 105.Rajesh 106.Shenbagavalli 107.Chandra 108.Saroja 109.Kamala 110.K.Vasanthi 111.Rathiga 112.Sarojini 113.Karpagavalli 114.Chandra 115.Pandi 116.Santha 117.P.Packiyam 118.Jeya 119.Nagarathinam 120.Ravindranath 121.R.Ganesan 122.Murugan 123.M.Arasakkal 124.Indumathi 125.M.Chellapani 126.Banu 127.V.L.Maheshwari 128.Meena 129.Umaiyal 130.Chandrasekaran 131.Ganesh 132.Mookkammal 133.Kumaresan 134.Pitchaiyammal 135.Kuppumani ... Review Petitioners -vs1.The Government of Tamil Nadu, Rep. by its Secretary, Housing Department, Chennai.

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2.The Managing Director, Tamil Nadu Housing Board, No.493, Anna Salai Nandhanam, Chennai.

3.The Chief Executive Engineer, Tamil Nadu Housing Board, Chennai - 600 035.

4.The Executive Engineer cum Administrative Officer, Madurai Housing Unit, Madurai Housing Board, Avaniyapuram, Madurai.

5.The Assistant Secretary (Allotment) Tamil Nadu Housing Board, Chennai - 35.

6.The Revenue Divisional Officer, Revenue Department, Madurai.

7.Saravana Kumar 8.Jeyanthi 9.Roopavathi 10.Asha 11.J.S.Nirmala 12.Parameshwari 13.Kantham 14.Ramana 15.Neelavathi 16.Susila 17.K.G.Ramila 18.J.B.Girija 19.J.S.Dharsini 20.Amutha 21.Ayyammal 22.Thangeshwari 23.Vijaya 24.Ramnath 25.Gracy 26.Rajeshwari 27.Thangam 28.Nagoor Ammal 29.Nagalakshmi 30.Vasantha 31.L.P.Prema 32.Muniyammal 33.Manimekalai ... Respondents 4/7

PRAYER: Review Application under Section 114 read with Order 47 Rules 1 & 2 of Code of Civil Procedure to review the judgment dated 13.06.2017 made in W.A.(MD) No.1064 of 2014.

Prayer in WA(MD).1064/ 2014:

To prefer this Memorandum of gournds of Writ appeal before this Honourable Court against the order of His Lordship Honourable Mr. Justice S. Nagamuthu dated 31.07.2014 passed in WP(MD) No. 7175/2009 on the file of this Honourable Court. For Petitioners : Mr.Isaac Mohanlal Senior Counsel for Mr.G.M.Xavier For Respondents : Mr.P.Subbaraj Special Government Pleader [For R1&R6] Mr.Mohaboob Athiff Standing Counsel [For R2 to R5] R7 to R33 - Given up

ORDER

T.S.Sivagnanam, J.

This review application has been filed to review the judgment and order dated 13.06.2017 in W.A.(MD).No.1064 of 2014. 2.The review petitioners who were the appellants are totally 162 in number. They had filed W.P.No.7175 of 2009 praying for issuance of writ of Mandamus to direct the respondents to divide the land in S.No.411/1 and 1/1 at Avaniyapuram into housing plots and allot the same to the petitioners as was assured by the respondent. 3.The learned Single Bench by order dated 31.07.2014 dismissed the writ petition holding that the land is to be used for industrial purpose and cannot be allotted to the writ petitioners as this was the stand taken by the Housing Board.

Even after dismissing the writ petition, an observation was made that it is open to the writ petitioners to make an application to the District Collector seeking alternative site in any other place and if such an application is made, it is for the District Collector to consider the same. 4.Aggrieved by the same, the petitioners filed a writ appeal which was dismissed by judgment dated 13.06.2017 and seeking review of the said judgment and order, the petitioners are before us by way of this review application.

5.We have elaborately heard Mr.Isaac Mohanlal, learned senior counsel for Mr.G.M.Xavier, learned counsel for the review petitioners, Mr.Subbaraj, learned Government Counsel for the respondents 1 and 6 and Mr.Mohaboob Athiff, learned Standing Counsel 5/7

for the respondents 2 to 5.

6.The settled legal principle is that a review application is not an appeal in disguise. Unless and until the review petitioner makes out a case of an error which is apparent on the face of the judgment or order, the Court cannot exercise its review jurisdiction. This would mean that the review petitioner cannot seek to re-argue the appeal or the writ petition under the guise of filing a review application. Precisely, this is what the review petitioners seek to do before us in this review application. 7.We support such conclusion for the following reasons. It is submitted by the learned senior counsel for the appellants/review petitioners that two counter affidavits were filed by the Housing Board, one dated 28.08.2010 and other dated 28.01.2011.

In both the counter affidavits, inconsistent stand has been taken in the matter of whether 'B' memos were issued to the petitioners or not. Therefore, it is submitted that when the Housing Board has accepted in one of the counter affidavit that 'B' memos were issued to the petitioners, it goes without saying that their occupation has been recognized as encroachments and they would be entitled to seek for allotment of house sites or atleast alternate site in a different location.

8.Firstly, it needs to be pointed out that issuance of 'B' memos does not in any create any vested right with the petitioners to claim to continue to be in possession of the land which they have encroached and also simultaneously claim to sub divide the land and allot plots to the encroachers. This proposition can never be accepted, as if done, it would putting a premium on a person who had violated the law and encroached in the property vested with the Tamil Nadu Housing Board pursuant to the land acquisition done by the Government of Tamil Nadu. That apart, there is no vested right for the petitioners to claim that they shall be allotted alternate site.

9.We are informed by the learned Standing Counsel for the Housing Board that soon after the dismissal of the writ petition, the review petitioners were evicted but thereafter they once again forcibly entered upon the land. It is further stated that even much earlier in the year 1986 the review petitioners were evicted. 10.The learned senior counsel appearing for the petitioners submitted that this was never the stand taken by the Housing Board in their counter affidavits filed in the writ petition. 11.Be that as it may, all the petitioners are to be termed as rank trespassers into the Government property and a different terminology by terming them as encroachers would not make things better nor change the legal position in their favour. We find that there is absolutely no error in the judgment and order passed in the 6/7

writ appeal calling for exercise of review jurisdiction. 12.Accordingly, the review application stands dismissed. No costs.

Sd/- Assistant Registrar (CS II) // True Copy // / /2021 Sub Assistant Registrar(CS) To 1.The Government of Tamil Nadu, Rep. by its Secretary, Housing Department, Chennai.