Madras High Court
M/S.Karur District vs Directorate Of Town & Country on 4 April, 2016
Author: V.Ramasubramanian
Bench: V.Ramasubramanian
Before the Madurai Bench of Madras High Court
Dated : 04.04.2016
Coram
The Hon'ble Mr.Justice V.RAMASUBRAMANIAN
and
The Hon'ble Mr.Justice N.KIRUBAKARAN
Writ Petition (MD) No.2895 of 2011
M/s.Karur District, Vengamedu,
Kongu Nagar Residents Welfare
Association, Karur (Regn.No.55 of
2010) rep.by its President
Mr.P.Thiyagarajan and its Secretary
Mr.M.Thiyagarajan ...Petitioner
Vs
1.Directorate of Town & Country
Planning Authority, rep.by its
Director, Chennai-2.
2.The District Collector, Karur
District, Karur.
3.Inam Karur Municipality, rep.by its
Executive Officer, Inam Karur
Municipality, Inam Karur, Karur
District.
4.Dr.P.Cheralathan
5.R.Navamani
6.G.Kannammal
7.Kalpana
8.K.Ramasamy ...Respondents
PETITION under Article 226 of The Constitution of India praying for the
issuance of a Writ of Mandamus directing respondents 1 to 3 to remove the
unauthorized developments found in the areas reserved for public purpose
measuring Ac.12.97 cents comprised in S.F.Nos.135, 136, 137, 138, 140, 141,
146, 151, 152, 153, 154, 155 and 160 in Vengamedu Region, Inam Karur Town,
Karur District, being the areas as shown in the sanctioned layout (sanction
No.LP/R(CN)No.9/1983 dated 13.1.1983) of the first respondent in accordance
with law and take over possession thereof so as to ensure the earmarked
usage.
!For Petitioner : Mr.G.R.Swaminathan
For Respondents 1 & 2 : Mr.C.Selvaraju, SGP
For Respondent-3 : Mr.R.Janakiramulu
For Respondent-4 : Mr.M.P.Senthil
For Respondents 5 to 7 : Mr.P.Natarajan
For Respondent-8 : Mr.K.Govindarajan
:ORDER
A registered association of residents of a colony, has come up with the above writ petition seeking a Mandamus to direct the respondents 1 to 3 to remove the unauthorized developments that have come up in the areas earmarked for public purposes in the layout that allegedly sanctioned way back in the year 1983.
2. We have heard Mr.G.R.Swaminathan, learned counsel appearing for the petitioner, Mr.C.Selvaraju, learned Special Government Pleader appearing for the respondents 1 and 2, Mr.R.Janakiramulu, learned counsel appearing for the third respondent Municipality, Mr.M.P.Senthil, learned counsel appearing for the fourth respondent, Mr.P.Natarajan, learned counsel appearing for the respondents 5 to 7 and Mr.K.Govindarajan, learned counsel appearing for the eighth respondent.
3. The basic averments, with which, the petitioner has come up with the above writ petition, can be summarized as follows :
(a) that as the president of a welfare association, the fourth respondent developed an extensive layout of house sites in a region falling within the municipal limits of the third respondent municipality in a land of an extent of 129.09 acres in S.F.Nos.135, 136, 137, 138, 140, 141, 146, 151, 152, 153, 154, 155 and 160;
(b) that a total of about 803 plots were to come up on a land of an extent of 98.43 acres, leaving an extent of about 12.97 acres, exclusively reserved for public purposes;
(c) that the layout was sanctioned by the office of the Director of Country and Planning in LP/R(CN) No.9/83 dated 13.1.1983;
(d) that thereafter, the third respondent, in collusion with the other respondents and the Chairman of the the third respondent Municipality, started selling lands, which were earmarked for public purposes;
(e) that therefore, the third respondent Municipality issued proceedings dated 13.9.2002 directing the fourth respondent to hand over the lands earmarked for the purposes namely acres 12.97;
(f) that the direction issued by the third respondent was thrown to the winds, forcing one of the residents of the locality to come up with a writ petition in W.P.(MD)No.2011 of 2005;
(g) that the said writ petition was disposed of by an order dated 17.3.2005 with a direction to the District Collector to consider the representation sent by the writ petitioner therein on 9.2.2004;
(h) that thereafter, the District Collector issued a proceeding dated 18.4.2005 directing the Municipality to survey the land allotted for public purposes and to protect the same by proper fencing;
(i) that the District Collector (second respondent) also directed the Municipality (third respondent) not to grant approval for the construction of any building in the land earmarked for public purposes;
(j) that the second respondent District Collector further directed the Electricity Board not to grant electricity service connection to the buildings located in the lands earmarked for public purpose;
(k) that to the shock and dismay of one and all, the third respondent took a stand thereafter that the sanctioned layout approval was not available in his office;
(l) that therefore, yet another writ petition was filed in W.P.(MD).No. 189 of 2007 seeking the removal of encroachment, but the same was dismissed on 9.1.2007, leaving it open to the petitioner to take steps for the non compliance of the order passed in the first writ petition;
(m) that thereafter, respondents 1 to 3 tossed the matter from one office after another stating that the original lay out approval was not available and therefore, the petitioner in the first writ petition in W.P.(MD) No.2011 of 2005 moved a contempt petition in Cont.P.(MD) No.377 of 2007;
(n) that immediately to overcome the contempt, the District Collector issued a public notice prohibiting the sale of the properties located in the area earmarked for public purposes and also directing the Electricity Board not to give service connection;
(o) that on the basis of the said order, the contempt was closed;
(p) that thereafter, the fourth respondent, in connivance with the Chairman of the municipality, again started selling lands and also put up a huge marriage hall without obtaining necessary planning permission; and
(q) that therefore, the petitioner was compelled to come up with the above writ petition.
4. The fourth respondent has filed a very strange counter affidavit disowning everything. He has taken a stand in the counter affidavit that he never promoted any layout. On the contrary, it is his case that his father was a prominent person in the locality and he floated an association and encouraged the villagers to pool their lands together for the purpose of development. According to the fourth respondent, his father inherited a land of a small extent of about 4.99 acres, under a partition deed dated 5.2.1976. This land was partitioned between the fourth respondent, his brothers and his father on 3.3.1976. The fourth respondent claims that he was allotted the land of an extent of 1.80 acres in S.F.Nos.138/9, 138/12, 138/13 and 138/17. Therefore, it is the case of the fourth respondent that he did not develop the layout and that he had only a small extent of land about 1.80 acres. Out of the said land, the fourth respondent claims to have sold one portion. According to him, the land of an extent of about 68 cents belonging to him forms part of the disputed land of the extent of 12.97 acres. Out of the said land, the third respondent has already laid a road in and about 32 cents.
5. In addition to the above, the fourth respondent has also taken a very interesting position namely that the layout was never approved and that what was granted in 1983 was only a technical approval. By taking such a position, the fourth respondent wants to contend that the very claim of the petitioner that an area was earmarked for public purposes in the approved layout, cannot be accepted.
6. The respondents 5 and 6 have filed a separate counter affidavit contending inter alia
(i) that the present writ petition is not maintainable in as much as two earlier writ petitions filed by individuals have already been disposed of;
(ii) that the petitioner association does not represent all the plot owners, but only represents about 45 persons;
(iii) that there are two more associations of residents of the colony, who have not raised any issue;
(iv) that the layout was granted only a technical approval and hence, the land earmarked for public purposes on a provisional basis, got released from such reservation under Section 38 of the Tamil Nadu Tow and Country Planning Act, 1971; and
(v) that no declaration under Section 26 or 27 of the Act has so far been published, declaring the land to be earmarked for public purposes and that therefore, the prayer of the petitioner cannot be granted.
7. Before we proceed to consider the contentions of the learned counsel appearing on either side, it is relevant to take note of a few developments that have taken place during the pendency of the writ petition. These developments are :
(i) The Municipal Council, in an emergency meeting held on 29.12.2011, appears to have passed resolution No.72, holding that what was granted in 1983 was only a technical approval. The resolution also states that the lands forming part of the entire layout are not in the hands of a single individual, but have been sold to several persons. 50% of the lands earmarked for school have already been sold. Some buildings have been constructed and their construction regularized as having been put up in an unapproved layout; and
(ii) Again, in a meeting held on 30.8.2013, the Municipal Council appears to have passed yet another resolution No.1681, resolving to regularize the unauthorized construction upon payment of regularization fee.
8. Though, in both these resolutions dated 29.12.2011 and 30.8.2013, the Municipality has taken a stand that what was granted in 1983 was only a technical approval, the second resolution records the fact that as per the layout, for which, whatever approval was granted in 1983, the reservation of areas was as follows :
"(i) house site : 802 plots
(ii) higher secondary school : 2,13,950 sq.ft.
(iii) primary school - I : 68,200 sq.ft.
(iv) primary school - II : 62,000 sq.ft.
(v) play ground : 50,000 sq.ft.
(vi) public utility : 74,650 sq.ft.
(vii) well and overhead tank-I : 8,400 sq.ft.
(viii) well and overhead tank-II : 3,000 sq.ft.
(ix) well and overhead tank-III : 5,400 sq.ft.
(x) well and overhead tank-IV : 5,600 sq.ft.
(xi) market area : 79,200 sq.ft. and
(xii) shops : 12,500 sq.ft."
9. Interestingly, the Chairman of the Municipal Council of Karur Municipality appears to have purchased a lot of plots on 5.9.2013, both in the name of his wife and in the name of his friends, after the Municipal Council passed the second resolution dated 30.8.2013. Some of the councilors have also purchased plots after the resolution of the Municipal Council and they are stated to have put up a huge marriage hall.
10. From the pleadings of parties and rival contentions, two things are very clear namely
(a) that plots in the land earmarked for public purposes have been and are being sold indiscriminately on the specious plea that the layout is unapproved and
(b) every one of the respondents is now washing away their hands prompting the purchasers as well as people, who put up constructions, to seek regularization.
11. Therefore, it is necessary to examine, as a first issue, whether there was an approved layout and if not, what would be the consequence of the layout being unapproved. The petitioner has produced a copy of the layout map. This layout map contains approval No.LP/R(CN)No.9/83. Below this number, there is an indication that the original approval was in LP.No. 134/81 and that the same had been modified to No.9/83. This layout map contains the signatures of all officers in the hierarchy including that of the Assistant Director of Town and Country Planning, Tiruchirapalli.
12. In a letter bearing R.O.C.No.20/2002 (A3) dated 13.9.2002, sent by the Special Grade Executive Officer of the third respondent Municipality to the District Collector, he has stated that the fourth respondent, as the president of the association, applied on 3.11.1982 for the grant of approval for a layout in a land of the extent of about 159.09 acres in S.Nos.135 to 138, 140, 141, 146 and 151 to 160. It is stated further in the said letter of the Executive Officer that the application submitted by the fourth respondent for layout approval was forwarded to the Deputy Director on 9.11.1982. Thereafter, the Senior Deputy Director of Town and Country Planning, Coimbatore, by his letter bearing Na.Ka.No.6587/82 dated 13.11.1983, granted approval for the layout.
13. Neither in the approved layout sketch nor in the letter of the Special Grade Executive Officer of the Municipality, it is stated that the approval was only a technical approval. This is why the Executive Officer also wrote a letter bearing Na.Ka.No.429/02 (A3) dated 13.9.2002, calling upon the fourth respondent to hand over the land of the extent of 12.97 acres earmarked for public purposes.
14. By a letter bearing RC.No.114/2004 dated 31.5.2005, the Executive Officer of the third respondent Municipality requested the Tamil Nadu Electricity Board not to grant electricity connection to buildings constructed in the layout, without obtaining a no objection certificate from the Municipality to the effect that they were not constructed in the area earmarked for public purposes.
15. But, interestingly, something very peculiar has happened thereafter. The original layout sketch, which ought to be available in the office of the Municipality, seems to have disappeared. Therefore, when an application was filed under the Right to Information Act, the Executive Officer of the Municipality sent a letter dated 10.1.2007, stating that the approved layout sketch was not available and that therefore, a survey of the land became impossible. Even the Director of Town and Country Planning took a stand in his letter bearing RC.No.7359/2007 dated 10.4.2007, addressed to the State Information Commissioner, that the original approved layout sketch was not available in his office.
16. Therefore, it is quite clear that the elected representatives of the third respondent Municipality have indulged in a game of hide and seek, even with this Court. As per the letters of the Executive Officer of the third respondent, the layout was approved way back in 1983. Today, the Municipality is taking a very dubious stand that what was granted was only a technical approval and that it was not followed by a proper approval. By taking such a stand, the respondents wants to contend that no area could be taken to have been earmarked for public purposes. Something serious appears to have happened in the offices of the respondents 1 to 3
(i) with the original layout sketch disappearing from their offices
(ii) with the respondents taking a position that there was no pucca approval for the layout, despite the Executive Officer conceding the grant of approval and
(iii) with the Municipal Council passing resolutions on 29.11.2011 and 30.8.2013 during the pendency of a writ petition for regularizing the unauthorized construction.
17. Therefore, it is clear that the respondents have thrown the entire provisions of the Town and Country Planning Act into dustbin. The fourth respondent, who was the original promoter of the layout, has made false averments in his affidavit, as though he had nothing to do with the layout, despite the records show that he applied for the approval of the layout in his name as the president of the association.
18. The manner, in which, the elected Chairman of the Municipality, the other elected councilors and their relatives have purchased the plots immediately after the resolution of the Municipal Council dated 30.8.2013, would go to show that they have scant respect for the rule of law.
19. The reliance placed by the respondents upon Section 38 of the Tamil Nadu Town and Country Planning Act and the decision of the Supreme Court in P.T.Chet Ram Vashist Vs. Municipal Corporation of Delhi [1995 (1) SCC 47], is unacceptable. We are not concerned in this case with the question as to whether the lands earmarked for public purposes have vested with the Local Body or not. We are concerned in this case with the question as to whether the land earmarked for public purposes in an approved layout could be sold and put to different use or not. The issue is settled by the Supreme Court in Bangalore Medical Trust Vs. B.S. Muddappa [1991 (4) SCC 54]. Therefore, the question as to whether the land has vested with the Municipality or not is of no consequence.
20. The reliance placed by Mr.M.P.Senthil, learned counsel appearing for the fourth respondent on the decision of the Supreme Court in Raju S. Jethmalani Vs. State of Maharashtra [2005 (11) SCC 222], is also of no avail. In the said case, a private land was reserved in the development plan for a park. The Court held that the same cannot be done without acquisition.
21. But, in the case on hand, we are concerned only with the question as to whether the area reserved for public purposes could be sold or not. Since the fourth respondent was the promoter and since he has not come out clean with full details, we do not know what was the agreement he had with the owners of other lands, who pooled all their lands together to form a layout.
22. Therefore, in fine, we are of the considered view
(i) that a layout plan was approved way back in 1983
(ii) that there has been an attempt on the part of the respondents 1 to 3 to suppress the factum of approval of layout and to mislead this Court as though there was only a technical approval
(iii) that even admittedly, the plots forming part of all the lands earmarked for public purposes have been sold, construction permitted and electricity connection given
(iv) that in order to overreach the orders of this Court passed in two earlier writ petitions and in order to overcome to present writ petition, the Municipal Council had passed two resolutions during the pendency of this writ petition seeking to regularize the unauthorized construction and
(v) that based upon those resolutions, the Municipal Chairman and the elected councilors have purchased plots in the names of their relatives, during the pendency of the writ petition.
Hence, we have no alternative except to allow the writ petition and issue appropriate directions.
23. There is one impediment namely that the purchasers of the land have not been impleaded as parties. But, the purchasers of the plots do not appear to be innocent members of the public. It appears that the Executive Officer of the Municipality issued a public notice way back in the year 2007 warning the public not to purchase or sell lands except after getting the no objection certificates from the Municipality. This has been confirmed by the proceedings of the District Collector bearing No.E2/3584/2008 dated 28.2.2008. The same letter of the District Collector also records the fact that by the proceedings of the Executive Officer of the Municipality bearing RC.No.114/2004 dated 31.5.2005, the Electricity Board was advised not to grant service connection.
24. Again, by a letter bearing RC.No.121/2008/A2 dated 7.3.2008, the Tamil Nadu Electricity Board was cautioned not to grant electricity service connection. By the proceedings of the same number and date, the Sub-Registrar was also cautioned not to register any document relating to the lands in question. By a letter of the Public Information Officer of the Tamil Nadu Electricity Board dated 16.9.2009, issued under the Right to Information Act, a list of persons, who had obtained electricity connection without obtaining the no objection certificate was furnished.
25. Even the Sub-Registrar has sent a communication dated 23.9.2009 to the Electricity Board not to grant service connection. Despite all the above, if persons have purchased lands in the area earmarked for public purposes, they have done so at their peril.
26. The history of unlawful constructions in the State of Tamil Nadu presents a very depressing picture, encouraged by the repeated ordinances allowing regularization of unauthorized construction. It will continue to flout the law. Unfortunately, when the law enforcing agencies occasionally wake up and take action for demolition, the Courts are compelled to take a sympathetic view on the ground that persons belonging to lower middle class have purchased those plots with the financial assistance rendered by banks and that they will suddenly be thrown to the streets. Such misplaced sympathy has encouraged lawlessness. Therefore, we are of the considered view that a strong message needs to be sent.
27. Hence, the writ petition is disposed of with the following directions:
(i) A Committee comprising of a Joint Director of Town and Country Planning, nominated by the first respondent, a Revenue Divisional Officer nominated by the second respondent and an officer of the rank of Assistant Director of Survey and Land Records, nominated by the second respondent, is hereby constituted.
(ii) Within two weeks of receipt of a copy of this order, the first respondent shall nominate an officer of the rank of Director of Town and Country Planning, who has a track record as an officer of high integrity.
Similarly, the second respondent District Collector shall also nominate an officer of the rank of Revenue Divisional Officer and an officer of the rank of Assistant Director of Survey and Land Records within two weeks of the receipt of the copy of this order.
(iii) The Committee so constituted shall take into possession, within two weeks of the constitution, all the records available in the offices of the respondents 1 to 3 or in the offices of any one of the Assistant Directors or Deputy Directors of Town and Country Planning, which relate to the layout in question.
(iv) Thereafter, the Committee shall conduct a local inspection of the lands in S.F.Nos. 135, 136, 137, 138, 140, 141, 146, 151, 152, 153, 154, 155 and 160 in Vengamedu region, Inam Karur Town, Karur District with the help of Town/Municipal Surveyors, Village Administrative Officers and Revenue Inspectors and submit a report.
(v) The report shall indicate
(a) the lands earmarked for public purposes as per the approved layout
(b) the details of lands sold by the promoters/original owners, from out of the lands earmarked for public purposes
(c) the details of persons, who have purchased the lands
(d) the details of buildings constructed at such lands along with an indication whether building plan approvals have been obtained or not
(e) the details of the elected representatives of the third respondent Municipality, who have purchased lands in their own names or in the names of their close relatives and the details of construction put up by them
(vi) The report as indicated above shall be submitted by the Committee within a period of three months from the date of constitution of the Committee
(vii) Till the Committee submits its report, the concerned Sub- Registrar/District Registrar shall not allow registration of any documents relating to the lands in the above survey numbers, unless the Committee issues a no objection certificate that such a land does not form part of the land earmarked for public purposes
(viii) Till the Committee files its report, the Municipality shall not accord any building plan approval, on the land earmarked for public purposes, except with a no objection certificate issued by the Committee
(ix) Till the Committee submits its report, no electricity connection shall be given to the buildings that have come up recently on the lands earmarked for public purposes and
(x) The third respondent Municipality is also injuncted from granting regularization to unauthorized constructions and the constructions put up on the lands earmarked for public purposes.
There will be no order as to costs.
28. Post in the first week of August 2016 for submission of the report by the Committee.
To
1.The Director, Directorate of Town & Country Planning Authority, Chennai-2.
2.The District Collector, Karur District, Karur.
3.The Executive Officer, Inam Karur Municipality, Inam Karur, Karur District. .