Madras High Court
Kudiyerupor Nala Sangam Reg. No. 129/94 ... vs The Commissioner, Land Assignment ... on 13 March, 2002
Author: D. Murugesan
Bench: D. Murugesan
ORDER
1. The above review application has been taken out by the petitioner Sangam in W.P. No. 3045 of 2001.
2. The review application arises under the following circumstances. One Dr. T.Amaranathan filed W.P. No. 21111 of 2000 for a writ of Mandamus directing the respondents 1 to 5 therein to remove all the existing encroachments between the whole stretch of Bharathi Salai and Thiruvalluvar Salai in Ramavaram, Chennai 89 and to take necessary and effective measures to prevent the recurrence of such encroachments. The petitioner in the Review Application also filed W.P. No. 3045 of 2001 seeking for a direction to the respondents to issue patta to the members of the petitioner Sangam in respect of the lands occupied by them.
3. When both the writ petitions were taken up for hearing, the learned Additional Advocate General submitted that the Government taking into consideration of the occupation of the lands by the members of the petitioner sangam in W.P. No. 3045/2001 for long number of years, have decided to provide them alternate sites in Survey No. 239/2, Eri poramboke, Ramapuram village, Ambattur Taluk where an extent of one acre of land is available and the same has been formed into layout and plots each to an extent of 20 ft X 20 ft = 400sq. ft. (each plot).
4. On the said submission, Mr. R. Sankara Subbu, learned counsel for the said petitioner prayed time to get instructions from his clients as to the suitability of the said land for occupation of the members of the Sangam. In order to enable the learned counsel to get instructions, I adjourned the writ petition at least for not less than eight occasions. Finally, on 11.9.2001, one P. Karuppuswamy, son of Poovalingam, the President of the petitioner Sangam filed an affidavit dated 10.9.2001 accepting the offer made by the learned Additional Advocate General to occupy the alternate sites proposed by the Government. On the basis of the said offer and the acceptance by way of affidavit, I issued the following directions in my order dated 13.9.2001.
(1)The second respondent in W.P. No. 3045 of 2001 shall made available an extent of 400 Sq.ft.(20'X20') of land to each of 77 members of the petitioner Sangam in S. No. 239/2 Ramapuram Village, Ambattur Taluk by demarcating 77 plots on or before 19.09.2001 by intimating the President of the petitioner Sangam under acknowledgement.
(2)All the 38 members of the petitioner Sangam in W.P. No. 3045 of 2001 shall occupy the 38 plots on or before 26.09.2001.
(3)All 38 members of the petitioner Sangam in W.P. No.3045 of 2001, who are the encroachers of Bharathi Salai (M.G.R. Salai) shall remove the encroachments and vacate the lands under their occupation on or before 26.10.2001.
(4)In the event of failure to remove and vacate the lands encroached by all the members of the petitioner Sangam in W.P. No. 3045 of 2001 on or before 26.10.2001 the second respondent is at liberty to evict and remove all the encroachments at Bharathi Salai without any prior notice.
(5)In the event of removal of encroachments by the second respondent as per the direction given in 4 above, the members of the petitioner Sangam in W.P. No.3045 of 2001 will have no right to seek for alternate accommodation of land including land in s. No. 239/2 Ramapuram Village, Ambattur Taluk.
5. Subsequent to the said order, the learned counsel appearing for the petitioner Sangam received a communication dated 27.9.2001 from the Member Secretary, C.M.D.A., Chennai which reads as under:
"With reference to your letter cited, you are informed that, the survey No. 217,222 and 224 lies in Primary Residential use zone and the proposed Inner circular Corridor (Rail)passes through the said Survey Nos. 217,218,222,224,239. They Survey No.218 lies in General Industrial use zone and Survey No.239 lies in Eri and 219 lies in Road portion and the above survey Nos. falls within Tamil Nadu Housing Board Acquisition area as per available records in CMDA.
It must be clearly understood that this is only by way of information. Any sub-division or construction or building or development in the land in question, is valid in law unless planning permission is applied for and duly granted for that sub-division, construction or development."
6. The petitioner filed appeal against the order in W.P. Nos. 21111 of 2000 an 3045 of 2001 in W.A.No.2199 of 2001. Before the Division Bench the learned counsel for the petitioner contended as follows:
"Mr. N.G.R. Prasad appearing for the appellant contends that the alternate site offered by the Government was not at all suitable for certain reasons and that in fact there was not adequate space to accommodate the members of the Sangam. The place was actually ear-marked for the formation of the Metro Rail Project. According to him respondents have not pleaded the correct facts before the learned Single Judge as regards the actual topography of the land in Survey No. 239/2 and had played a fraud on the Court. We have also perused the affidavit filed on behalf of the appellant in support of their contentions."
7. After hearing the learned counsel appearing for the appellant as well as the learned Government Pleader, the Division Bench by order dated 5.2.2002 has observed as follows:
"We have considered the rival contentions and also perused the affidavits filed by both sides. In view of the nature of disposal of this appeal, we decline to enter into the merits of the contentions raised by both parties. It is sufficient to point out that the order of the learned single Judge is in essence a consent order and the learned single Judge had also indicated that he was not inclined to go into the merits of the case in view of the offer and acceptance of the alternate site. The fact that the disputed area is classified in the Revenue records as "Vandipatthai and Neer Nilar Poromboke"(cart track and Eri Poromboke) is admitted by the appellant vide their affidavit in W.A.M.P. No.17355 of 2001. Therefore, the appellants cannot claim any vested right to remain in possession of the area when the same is required by the Government for regulating the increased traffic. Rightly the Sangam had agreed to accept the alternate site offered by the government and had accepted an order from the learned Single Judge. In the said background we are unable to appreciate the Sangam filing an appeal. If they have any genuine grievance about the feasibility of the offer made by the Government on any ground, the proper course would be to have approached the learned single Judge himself. Whatever grounds which are now pleaded before us namely, that there was no adequate space available for allotment, that the Government had not placed all the relevant facts about the actual topography of the land or that the Government had played fraud on the court etc., are all matters which should have been brought to the notice of the learned single Judge himself either by way of Review or for clarification. If there is any violation of or non-compliance of the order of the learned single Judge, there are other remedies open to the appellants. On the face of the allegations projected before us, it will not be consonance with the judicial decorum to entertain the above appeal"
8. Placing reliance on the above observation of the Division Bench that the petitioner Sangam ought to have approached the single Judge either by way of review or clarification of the order, the present review application has been filed.
9. Mr. R. Sankara Subbu, learned counsel for the petitioner submitted that the land proposed by the Government is not suitable as could be seen from the following.
(1)As per the communication of the Member Secretary, C.M.D.A. dated 27.9.2001, the proposed inner circular (Rail)corridor passes through S.No.239 (2)S. No. 239 lies in Eri poramboke (3)The said survey number falls within Tamil Nadu Housing Board Acquisition area.
(4)Any sub-division or construction or building or development in the land in question is valid in law unless planning permission is applied for and duly granted for that sub-division, construction or development.
10. The learned counsel submitted that the above facts have not been brought to the notice of the members of the petitioner Sangam when the petitioner Sangam agreed to take up the alternate cite in S. No. 239 and when the President filed an affidavit of undertaking to vacate the place in their occupation and to occupy the plots allotted by the Government. Hence, the order of this Court has to be reviewed as the land proposed for allotment to the members of the petitioner Sangam was not suitable. In support of the above submission, the learned counsel relied upon the judgment of the Supreme Court reported in 2000 (8) SUPREME 166 ( STATE OF KARNATAKA AND OTHERS VS. SIDDAIAH).
11. Per contra, the learned Additional Advocate General submitted that the review application itself is not maintainable. In view of the order of the Division Bench dismissing the writ appeal, the order in the writ petition became final and the same was merged with the order in the writ appeal. Hence, the order in Writ petition cannot be reviewed by this Court. In support of the said submission, the learned Additional Advocate General relied upon the decision (KUNHAYAMMED AND OTHERS V. STATE OF KERALA AND ANOTHER). On the facts, the learned Additional Advocate General submitted that even though the communication of the Member Secretary, C.M.D.A., dated 27.9.2001 refers to the proposed inner circular corridor is passing through the Survey No. 239, in fact, the said railway corridor passes on the southern end of the land. The land which was proposed for allotment of the members of the petitioner Sangam in S. No. 239/2 is not affected by the proposed railway line.
12. In so far as the second submission is concerned, the learned Additional Advocate General submitted that even when the proposal was made by the Government, the members of the Petitioner Sangam were aware of the fact that the land which was proposed for allotment to the members of the Petitioner Sangam was classified as Eri poramboke. The learned counsel for the petitioner was given at least eight occasions to verify and also to take instructions from the clients and ultimately the President of the Sangam filed a letter of undertaking dated 10.9.2001 agreeing to take up the plots in S. No. 239/2. Therefore, the learned Additional Advocate General submitted that it is not open to the petitioner Sangam now to go back on the undertaking and contend that the land is not suitable. The learned Additional Advocate General further contends that the proposed land is not low lying and is not water stagnating as contended by the petitioner Sangam. The land had been levelled and already plotted for ready occupation and therefore, the said contention also has to be rejected.
13. In so far as the acquisition proceedings said to be pending, the learned Additional Advocate General submitted that no acquisition proceedings are pending in respect of the land in S. No. 239/2.
14. Finally, in so far as power of C.M.D.A to classify of the land is concerned, he submitted that the land is an Eri Poramboke and the Government is empowered to classify and sub-divide the lands into plots and in fact, the Government have already plotted the lands and the plots are ready for occupation and therefore the said contention that the C.M.D.A alone has got power to sub divide the land is not correct.
15. Further, the learned Additional Advocate General submitted that whatever the difficulties that may be experienced by the members of the petitioner Sangam in their peaceful enjoyment of the proposed land, the Government will be always ready and willing to ensure peaceful possession of the land by the members of the petitioner Sangam.
16. Mr. Natarajan, learned Counsel appearing for the writ petitioner in W.P. No. 21111/2000 also adopted the submissions made by the learned Additional Advocate General.
17. I have given my careful consideration to the above submission of the counsel.
18. In so far as the maintainability of the Review application it is to be seen that the order in W.P. Nos.21111 of 2000 and 3045 of 2001 was passed only by consent. The said fact has also been taken note of by the Division Bench while dismissing the writ appeal. The consent order was passed after the proposal was made by the Government for allotment of alternate sites to the members of the petitioner Sangam in Survey No. 239/2. After the matter was adjourned atleast for eight occasions, the President of the Sangam also filed an affidavit of undertaking on behalf of the Members of the Sangam to occupy the proposed land. Thereafter only the order was passed on the basis of the undertaking. Subsequent to the said order the petitioner received a communication from the Member Secretary, C.M.D.A. in his proceedings dated 27.9.2001. Placing reliance on the said letter, the petitioner has filed the Writ Appeal and the same was dismissed. Of course, the only point that was argued before the Division Bench was that the proposed inner circular corridor passes through the Survey No. 239 also. While considering the submission of the learned counsel appearing in the writ appeal, the Division Bench, has observed as follows;
`If they have any genuine grievance about the feasibility of the offer made by the Government on any ground, the proper course would be to have approached the learned single Judge himself. Whatever grounds which are now pleaded before us namely, that there was no adequate space available for allotment, that there was no adequate space available for allotment, that the Government had not placed all the relevant facts about the actual topography of the land or that the Government had played fraud on the court etc., are all matters which should be have been brought to the notice of the learned single Judge himself either by way of Review or for clarification. If there is any violation of or non-compliance of the order of the learned Single Judge, there are other remedies open to the appellants. Of the face of the allegations projected before us, it will not be in consonance with the judicial decorum to entertain the above appeal.' By the said observation, the Division Bench did not entertain the plea raised by the petitioner over the subsequent communication of C.M.D.A. dated 27.9.2001. The observation that the petitioners ought to have approached the learned Single Judge, in my view, does not mean that the petitioner Sangam is given opportunity to approach this Court by way of Review Application. As rightly pointed out by the learned Additional Advocate General once the Division Bench has passed the order dismissing the writ appeal, the order in the writ petitions shall merge with the order in the writ appeal and this court will have no jurisdiction to review the said order. Useful reference can be made to the judgment of the Apex court made in KUNSHAYANNED AND OTHERS V. STATE OF KERALA AND ANOTHER "12.The logic underlying the doctrine of merger is that there cannot be more than one decree or operative orders governing the same subject-matter at a given point of time. When decree or order passed by inferior Court, tribunal or authority was subjected to a remedy available under the law before a superior forum then, though the decree or order under challenge continues to be effective and binding, nevertheless its finality is put in jeopardy. Once the superior Court as disposed of the lis before it either way - whether the decree or order under appeal is set aside or modified or simply confirmed, it is the decree or order of the superior Court, tribunal or authority which is the final, binding and operative decree or order wherein merges the decree or order passed by the Court, tribunal or the authority below. However, the doctrine is not of universal or unlimited application. The nature of jurisdiction exercised by the superior forum and the content or subject matter of challenge laid or which could have been laid shall have to be kept in view."
The Apex court in the judgment has also held as follows:
"10.In M/S Gojer Brothers Pvt. Ltd., V. Shri Ratanlal, this Court made it clear that so far as merger is concerned on principle there is no distinction between an order of reversal or modification or an order of confirmation passed by the appellate authority; in all the three cases the order passed by the lower authority shall merge in the order passed by the appellate authority whatsoever be its decision - whether of reversal or modification or only confirmation.
Their Lordship of the Division Bench have also given a finding that the order in the writ petition is a consent order. Hence, in my considered view, the power of review cannot be extended to a case where specifically at the instance of the petitioner Sangam the writ appeal was dismissed duly taking note of the proceedings of the Member Secretary, C.M.D.A. Dated 27.9.2002. The said communication is again sought to be relied before this Court for the purpose of review. Moreover the petitioner had the benefit of placing reliance of the letter of the Member Secretary, C.M.D.A. Before the Division Bench. Except placing reliance on the proposed inner circular (Rail) corridor the other points in the said letter were not canvassed. Hence, the petitioner is not entitled to raise those points for reviewing the order in writ petitions. Hence, the review application itself is not maintainable.
19. Even if the submissions of the learned Counsel are considered on merits, in paragraph 2 of the counter affidavit it is stated as follows:
It is respectfully submitted that I deny the allegations made in the Review Application as incorrect. Though the railway line passes through the S.No.239 it has been proposed on elevated strucfture on the southern end of the land. The Member Secretary, CMDA, Chennai 8 has given a letter in reference Rail/22399/2001 dt.6.12.2001 along with the sketch in this regard. Hence, the proposed railway line will in no way affect the proposed alternate Site to the encroachers. The proposed land is not low laying and no water is stagnated. Hence, the Applicant's contention is incorrect. The alternate Site is well available for the occupation of Kudiyiruppor Nala Sangam. The Applicant's contention is not correct. As per the letter issued by the Member secretary, CMDA, the proposed alternate Site is not affected, since the railway line passes only through the Southern side of land in elevated structure. The Applicant's contention is not correct. Authorities have informed the facts from records and information gathered through enquiry. Hence, there is no misrepresentation before the Hon'ble Court.'
20. The proposed inner circular corridor does not pass through the lands in S. No. 239/2 as the same passes through the southern end of the said land undivided S. No. 239. Further, even when this proposal was made by the Government, the petitioner Sangam was aware of the fact that S. No. 239/2 which has been classified as Eri Poramboke and knowing fully well, the affidavit of undertaking was filed before this Court. It is the specific stand of the Government that the proposed land is not a low lying area and is not stagnated, and when the same has been plotted and sub-divided after levelling, merely because the land has been classified as Eri poramboke for revenue record purpose as, it can not be said that the said land is not suitable for occupation. The judgment of the Apex Court relied upon the learned counsel for the petitioner is not applicable to the facts of the present case. That was a case where an extend of 4 acres of land S.No.78 was directed by the arbitrator for allotment to the affected individual. When it was pointed out by the Director, Department of Social Welfare, that the proposed land lies in Tank bed and suggested alternate site, the Apex court passed the said order. In this case, it is the specific stand of the Government that the land is suitable for occupation and the land has been already plotted and lay out has also been formed. After ascertaining the same only the petitioner filed undertaking before this court to occupy the land. In view of the statement of the learned Advocate General as to the readiness of the Government to ensure peaceful possession of the land by the members of the petitioner I do not think that the petitioner could rely upon the said judgment to seek for alternate site.
21. The learned Additional Advocate General also has submitted that the land is not under any land acquisition proceedings and the land has already been plotted and sub-divided. Therefore, the last submission also cannot be accepted.
22. For all the above reasons, I am unable to accept the contentions of the learned counsel for the petitioner that the land is not suitable for occupation and therefore, the order has to be reviewed. In this context, it is relevant to point out that the learned Additional Advocate General has also submitted that whatever the grievance that may be experienced by the members of the Petitioner Sangam after occupation will be solved, as and when the same are brought to the notice of the Government. The said submission of the learned Additional Advocate General, in my considered view will safeguard the interest of the members of the petitioner Sangam for the peaceful and enjoyment of the plots that may be allotted to them pursuant to my order in the writ petitions No. 21111 of 2000 and 3045 of 2001. for all the above conclusions, I do not find any merit in the Review application. Accordingly, the Review Application is dismissed. Consequently, W.M.P.Nos.10266 and 11009 of 2002 are also dismissed.