Madras High Court
R.Jayamani Alias Jaya vs The Director on 8 July, 2022
Author: C.Saravanan
Bench: C.Saravanan
W.P.No.1206 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved On 28.06.2022
Pronounced On 08.07.2022
CORAM
THE HON'BLE MR.JUSTICE C.SARAVANAN
W.P.No.1206 of 2022
and
W.M.P.Nos.1282 & 1286 of 2022
R.Jayamani alias Jaya ... Petitioner
Vs.
1.The Director,
Directorate of Town & Country Planning,
Opposite LIC, Chengalvarayan Building,
Fourth Floor, 807, Anna Salai,
Chennai – 600 002.
2.The Deputy Director of Town and
Country Planning,
Chengalpattu Region,
No.1424, GST Road,
Periyar Shopping Complex,
Chengalpattu – 603 001.
3.The Block Development Officer,
Thiruporur Panchayat Union,
Thiruporur, Chengalpattu District.
______________
https://www.mhc.tn.gov.in/judis
Page No 1 of 27
W.P.No.1206 of 2022
4.The President,
Thaiyur Panchayat,
Thaiyur, Thiruporur Taluk,
Chengalpattu District.
5.M/s.Palace Co-operative Housing
Society Ltd.,
Represented by its President,
No.29, Papanasam Sivan Salai,
Mylapore, Chennai – 600 004.
6.The Sub Registrar,
Tiruporur, Chengalpattu District.
7.B.Parimala
8.M.Sankaribai ... Respondents
(R7 & R8 impleaded vide order dated
22.06.2022 made in W.M.P.No.14486/2022)
Writ Petition filed under Article 226 of the Constitution of India,
for issuance of a Writ of Certiorarified Mandamus, to call for the records
relating to the impugned order dated 13.11.2021 passed by the second
respondent and the consequential orders dated 15.11.2021 and
22.11.2021 passed by the third and fourth respondents respectively
granting layout approval for the lands including the lands in Survey
Nos.675/5, 684 (0.88 Cents), 712/5 (0.37 Cents), 699/1 (0.07 Cents) and
694/2A (0.03 Cents) totally measuring Ac.01-35 Cents, covered in Patta
Nos.728 and 723, Thaiyur Village, Tiruporur Taluk, Kancheepuram
District and quash the same and consequently direct the sixth respondent
______________
https://www.mhc.tn.gov.in/judis
Page No 2 of 27
W.P.No.1206 of 2022
to not to entertain any registration of land / plots covered by the said
impugned orders.
For Petitioner : Mr.S.Thanka Sivan
For R1, R2 & R6 : Mr.C.Meera Arumugam
Additional Government Pleader
For R4 : Mr.K.Karthikeyan
For R5 : No appearance
ORDER
This writ petition has been filed by the petitioner to issue a writ of Certiorarified Mandamus to call for the records relating to the impugned order dated 13.11.2021 passed by the second respondent and the consequential order dated 15.11.2021 and 22.11.2021 passed by the 3rd and 4th respondents respectively granting layout approval for the lands in Survey Nos.675/5, 684 (0.88 cents), 712/5 (0.37 cents), 699/1 ( 0.07 cents) and 694/2A (0.03 cents) totally measuring Ac.01-35 cents, covered in patta Nos.728 and 723, Thaiyur Village, Thiruporur Taluk, Kancheepuram District which is the subject matter of the Civil Suit for partition in O.S.No.128 of 2021 on the file of the Principal District Judge, Chengalpattu.
______________ https://www.mhc.tn.gov.in/judis Page No 3 of 27 W.P.No.1206 of 2022
2. The specific case of the petitioner is that one of the family properties has been sold by the petitioner's brothers and their children in favour of M/s.Palace Co-operative Housing Society Limited, the fifth respondent vide Sale Deed dated 25.07.2019 behind her back without allotting 1/12th share to her.
3. It is submitted that the petitioner along with the eight respondent who has been impleaded on 22.06.2022 has also filed a suit in O.S.No.128 of 2021 before the Principal District Judge, Chengalpattu for the following reliefs:-
i. Partition the suit schedule properties and allot 1/12th share each to the plaintiffs (petitioner and the eight respondent).
ii. Appointment of advocate commissioner to partition the suit schedule properties by metes and bounds. iii. For ascertainment of income from the suit properties from the date of plaint till realisation disbursing the income derived from the suit schedule properties. iv. To declare the sale deed dated 6.8.2020 registered as document No.6684 of 2020 in the office of the Sub Registrar, Thiruporur, as null and void. v. To declare the sale deed dated 6.8.2020 registered as document No.6685 of 2020 in the office of the Sub Registrar, Thiruporur, as null and void. vi. To declare the sale deed dated 6.8.2020 registered as ______________ https://www.mhc.tn.gov.in/judis Page No 4 of 27 W.P.No.1206 of 2022 document No.6687 of 2020 in the office of the Sub Registrar, Thiruporur, as null and void. vii.To declare the sale deed dated 25.07.2019 registered as document No.10135 of 2019 in the office of the Sub Registrar, Thiruporur, as null and void. viii.To grant such other reliefs ix. To pay the cost of the suit.
4. It is submitted that the pleadings are completed. It is further submitted that the petitioner had earlier filed W.P.No.14949 of 2021 wherein the fifth respondent was also made a party. It is submitted that the said writ petition was filed to issue a Erit of Mandamus to forbear the respondent authorities 1 to 4 from processing any application for approval of layout in respect of subject property viz., lands in Survey Nos.675/5, 684 (0.88 cents), 712/5 (0.37 cents), 699/1 (0.07 cents) and 694/2A (0.03 cents) totally measuring 01.35 Acres, covered in patta No.728 and 723 Thaiyur Village, Thiurporur Taluk, Kancheepuram District and consequently direct the respondent authorities to act upon the representations dated 19.03.2021, 8.4.2021 and 30.06.2021 of the petitioner.
5. The learned counsel for the petitioner further submits that a specific order was passed by this Court dated 17.08.2021 in terms of ______________ https://www.mhc.tn.gov.in/judis Page No 5 of 27 W.P.No.1206 of 2022 which, there was a direction to the fifth respondent herein to submit his explanation before the second respondent and the second respondent was directed to consider the objections of the petitioner and the fifth respondent herein and to pass appropriate orders.
6. The learned counsel further submits that pursuant to the aforesaid direction of this Court, the second respondent deferred the application filed by the sixth respondent and taking note of the pendency of the suit filed by the petitioner seeking partition and allotment of her share. The subject property in 6th schedule to O.S.No.128 of 2021 is the subject matter of the present Writ Petition. It is submitted that a legal opinion of the Government Pleader dated 21.09.2021 was obtained by the official respondents, wherein it was opined that the fifth respondent did not have a clear title for the entire extent of property particularly the land in S.No.675/5, 684, 712/5, 699/1 & 694/2A totally measuring an extent of 1.35 Acres which is the subject matter of O.S.No.128 of 2021 before the Principal District Judge, Chengalpattu. The second respondent therefore deferred the consideration of the application for approval of the layout filed by the fifth respondent vide his proceedings No.1255/2021 kh.c.jp.F ______________ https://www.mhc.tn.gov.in/judis Page No 6 of 27 W.P.No.1206 of 2022 (br.kh-5) dated 29.09.2021. Relevant portion reads as under:-
“ghh;it -2y; fhqk; tHf;fpd; 5tJ gpujpthjp kw;Wk; ghh;it 3-y; fhqk; tHf;fpd; kDjhuh;
MfpnahuJ foj';fs; ghprPypf;fg;gl;ljpYk;/
nkw;fz;lthW muR tHf;fwp"h;. khz;g[kpF
brd;id cah;ePjpkd;wk; mth;fsJ rl;l
fUj;JUtpy; bjhptpf;fg;gl;lij bjhlh;e;Jk;/
ghh;it-3y; fhqk; Principal District Judge, Chengalpattu ePjpkd;wj;jpy; tHf;F epYitapy; cs;sjhYk; tHf;fpd; bghUshd br';fy;gl;L khtl;lk;/ jpUg;ngh+h; tl;lk;/ ija{h; fpuhkk;/ epy msit vz;fs;.675/5. 684/ 712/5/ 699/1/ 694/2A – 1.35 Vf;fh; gug;g[ Mfpatw;Wld; (k) gytw;wpy;
M/s.Palace Co-operative Housing Society Ltd/, tpz;zg;gpj;j FoapUg;g[ kidg;gphpt[f;F ghh;it 9-y; fhqk; efh; Cuikg;g[ ,af;Feh;/ brd;id mth;fshy; ,irt[ tH';fg;gl;ljw;F jpl;l mDkjp tH';FtJ Fwpj;J epYitapy; itf;fg;gLfpwJ vd;fpw tptuk; bjhptpf;fg;gLfpwJ.”
7. The above proceedings clearly states that the proposal for grant of layout approval was kept deferred. Contrary to the above order, the impugned order now been passed and a consequential direction have been issued based on a revised legal opinion given by another Government Pleader on 12.11.2021 stating that no layout approval could be granted in favour of the fifth respondent. It is submitted that nothing has been changed since the earlier order was passed on 29.09.2021 by the second respondent.
______________ https://www.mhc.tn.gov.in/judis Page No 7 of 27 W.P.No.1206 of 2022
8. It was therefore submitted that approval granted to the fifth respondent based on the revised legal opinion dated 12.11.2021 of the Government Pleader cannot be basis for grant of approval and is unjustified.
9. The learned counsel for the petitioner submits that the property in question which is the subject matter of O.S.No.128 of 2021 was inherited by the petitioner along with her siblings which included one of the vendors who unilaterally sold the property to the fifth respondent. It is submitted that the Sale Deed executed between the fifth respondent's vendor namely, the brother of the petitioner and their children, has clearly declared that the suit in O.S.No.155 of 1967 before the Principal District Court, Chengalpattu was earlier filed by late Dharmalinga Mudaliar against his brothers seeking partition of his 1/4th undivided share in the joint properties as well as the joint family business and that during the pendency of the aforesaid proceedings, the father of the petitioner and seventh and eight respondents namely, late Dharmalinga Mudaliar died on 18.05.1976. Therefore, the petitioner, the fifth respondent's vendor and the newly impleaded seventh and eight respondents and 8 others, were ______________ https://www.mhc.tn.gov.in/judis Page No 8 of 27 W.P.No.1206 of 2022 impleaded as legal heirs of late Dharmalinga Mudaliar. A judgment was passed in O.S.No.155 of 1967 on 31.07.1979, wherein, legal heirs were alloted 1/4th share in various properties which was the subject matter of the said partition suit and thus, all the legal heirs of late Dharmalinga Mudalir were equally entitled to share in the said property.
10. It is submitted that the attempt of the fifth respondent to get approval over the land, in respect of which the suit was pending, cannot be entertained. It is submitted that there are no documents to show that there was either oral partition or transfer of right in favour of the fifth respondent's vendor either by the petitioner or newly impleaded respondents.
11. In this Writ Petition, an interim stay was granted by this Court on 01.02.2022
12. Opposing the prayer, the learned counsel for the fifth respondent submits that the fifth respondent has filed a petition to vacate ______________ https://www.mhc.tn.gov.in/judis Page No 9 of 27 W.P.No.1206 of 2022 the interim stay and submits that total extent of lay out about 38.55 acres comprised in different Survey Numbers as detailed below:-
“ Survey Nos.565/1, 3A, 2B, 566/1A, 1B, 3A, 567/1, 678/1, 2 Part, 679/1, 2, 3, 680/2, 682/1, 2,3,4, 684, 685/2A, 686 Part, 687/2, 3A, 3B, 4, 5, 688/1, 2, 3, 4, 690/3, 692/1, 2, 3, 4A, 4B, 5, 593, 694/1, 2A, 2B, 3, 4, 695/2, 697/1, 2A, 2B, 2C, 698/1, 2A, 3, 4, 5, 699/1, 2, 3, 700/1, 2, 701, 702/1, 2, 3, 5, 703/1, 2A, 2 B, 704/1, 2, 705/1, 2, 3, 706/1, 708/1, 3, 709/1, 2, 5, 6, 7, 8, 8, 9, 10-A, 10-B, 11, 12, 710, 712/3, 5 Part, 6A, 7, 8, 713/5, 6, 7A, 7B, 8, 714/5A, 5B, 5C, 9, 10,11,12,1121/5 and 1122/2”
13. It is submitted that the land in question in respect of which, the petitioner claims a right measures a total extent of 1.35 Acres. It is submitted that the petitioner as also the three sisters, two of them have been impleaded vide order dated 22.06.2022, are entitled to 1/12th share from the land which is equivalent to 11.25 Cents (135 / 12). It is further submitted that the petitioner has received an amount of Rs.2,50,000/- on 18.01.2006 vide cheque bearing No.419345 drawn on Kancheepuram Central Co-operative Bank and therefore the petitioner has no right over the property. Similarly, newly impleaded two sisters, i.e. seventh and eight respondents have also received an amount of Rs.2,50,000/- each ______________ https://www.mhc.tn.gov.in/judis Page No 10 of 27 W.P.No.1206 of 2022 vide Cheque No.419347 dated 18.01.2006 drawn on Kancheepuram Central Co-operative Bank and Cheque No.419346 dated 18.01.2006 drawn on Kancheepuram Central Co-operative Bank respectively along with their sister namely Ramanibai who has received an amount of Rs.2,50,000/- vide Cheque No.419344 dated 18.01.2006 drawn on Kancheepuram Central Co-operative Bank. It is submitted that this was also recorded in the family arrangement dated 18.01.2006.
14. It is thus submitted that neither the petitioner nor the impleaded seventh and eight respondents having any right over the said land as the family arrangement was acted upon as early as 2006. That apart, it is submitted that the first respondent's husband namely Rajasekaran has also given a affidavit duly notarized stating that there was a family arrangement in 2006 which was reduced and acted upon by the family members. Neither the family members of the elder sister namely, Ramanibai or the petitioner or the two other sisters who have been impleaded as seventh and eight respondents, have any right over the aforesaid land.
______________ https://www.mhc.tn.gov.in/judis Page No 11 of 27 W.P.No.1206 of 2022
15. It is submitted that Dharmalinga Mudaliar and other legal heirs of Mr.Balasundara Mudaliar had filed a suit in O.S.No.155 of 1967 before the District Munsif Court, Chengalpattu for a decree of partition and during the pendency of the above said suit, Dharmalinga Mudaliar died and his legal heirs were brought on record and a Judgment was passed in favour of him. The legal heirs of Dharmalinga Mudaliar outside to sell the property development of layout by the fifth respondent, the petitioner has been filed a suit in O.S.No.128 of 2021 before the Principal District Court, Chengalpattu
16. The learned counsel for the fifth respondent further submits that the approval cannot be kept pending based on the suit filed by the petitioner. It is further submitted that the approval has also been granted and therefore rights of the petitioner running in 740 members cannot pay to jeopardy. It is further submitted that the petitioner and petitioner's sibling namely Sankaribai have also received an amount of Rs.2,50,000/- vide cheque No.419346 drawn on Kancheepuram Central Co-operative Bank. At best entitled to 11.25 cents each out of 1.35 cents which has been sold to the fifth respondent by the other legal heirs vide sale deed ______________ https://www.mhc.tn.gov.in/judis Page No 12 of 27 W.P.No.1206 of 2022 dated 25.07.2019. Therefore, it is submitted that the objection of the petitioner cannot be kept in Jeopardy at the cost of the members of the sixth respondent Society. It is therefore prayed for interim order to be vacated.
17. The learned Senior Counsel for the fifth respondent further submits that the petitioner has an alternate remedy by way of appeal under Section 79 of the Tamil Nadu Town and Country Planning Act, 1971 and further by way of revision under Section 80 of the Act and Review under Section 81 of the Act . It is submitted that this Writ Petition is liable to be dismissed.
18. The learned Senior Counsel for the fifth respondent further submits that though the Writ Petition was originally filed by the petitioner, the petitioner has unnecessarily ensured that other sisters have also got to be impleaded in this Writ Petition with a view to frustrate the project.
19. It is submitted that the petitioner was registered for the benefit ______________ https://www.mhc.tn.gov.in/judis Page No 13 of 27 W.P.No.1206 of 2022 of employees of the Central Government and registered as Co-operative Societies under the Tamil Nadu Co-operative Societies Act, 1983 and that the total extent of layout is 38.6 Acres and that the members of fifth respondent have invested in purchasing the land for putting up a construction. It is submitted that about 742 Plots have been approved by the second respondent and 511 Plots have already been registered and considerations for the balance Plots are received and stamps have been purchased and that they have to be registered on or before 30.06.2022, failing which, stamps will have to be returned.
20. In support of the Writ Miscellaneous Petition filed for vacating the interim stay, the learned Senior Counsel for the fifth respondent has relied on the following decisions:-
i. Ravinder Kaur Grewal and others Vs. Manjit Kaur and others, (2020) 9 SCC 706.
ii. Phoenix ARC Private Limited Vs. Vishwa Bharati Vidya Mandir and Others, (2022) 5 SCC 345. iii. Roshina T Vs. Abdul Azeez K.T. and others, (2019) 2 SCC 329.
______________ https://www.mhc.tn.gov.in/judis Page No 14 of 27 W.P.No.1206 of 2022
21. In Ravinder Kaur Grewal and others Vs. Manjit Kaur and others, AIR 2020 SC 3799 : (2020) 9 SCC 706, the Hon'ble Supreme Court has clearly held that “The settled legal position is that when by virtue of a family settlement or arrangement, members of a family descending from a common ancestor or a near relation seek to sink their differences and disputes, settle and resolve their conflicting claims or disputed titles once and for all in order to buy peace of mind and bring about complete harmony and goodwill in the family, such arrangement ought to be governed by a special equity peculiar to them and would be enforced if honestly made. The object of such arrangement is to protect the family from long-drawn litigation or perpetual strives which mar the unity and solidarity of the family and create hatred and bad blood between the various members of the family, as observed in Kale [Kale v. Director of Consolidation, (1976) 3 SCC 119].”
22. It is submitted that the family arrangement between the members of late Dharmalinga Mudaliar, i.e. the petitioner as also the newly impleaded seventh and eight respondents and others who are ______________ https://www.mhc.tn.gov.in/judis Page No 15 of 27 W.P.No.1206 of 2022 claiming the rights over the property was an inter se settlement and therefore it is not open for them to challenge the approval granted by the second respondent under Section 49 of the Tamil Nadu Town and Country Planning Act, 1971 to the fifth respondent.
23. The decision of the Hon'ble Supreme Court in Roshina T Vs. Abdul Azeez K.T. and others, (2019) 2 SCC 329 was citied to state that the remedy under Article 226 of the Constitution is not be available except where violation of some statutory duty on the part of statutory authority is alleged. In such cases, the Court has jurisdiction to issue appropriate directions to the authority concerned. It is held that the High Court cannot allow its constitutional jurisdiction to be used for deciding disputes, for which remedies under the general law, civil or criminal are available.
24. The decision of the Hon'ble Supreme Court in Phoenix ARC Private Limited Vs. Vishwa Bharati Vidya Mandir and Others, (2022) 5 SCC 345, was cited to buttress the same point that the discretionary jurisdiction under Article 226 of the Constitution of India is ______________ https://www.mhc.tn.gov.in/judis Page No 16 of 27 W.P.No.1206 of 2022 not absolute but has to be exercised judiciously in the given facts of a case and in accordance with law.
25. It is submitted that the project of the petitioner cannot derive merely because the petitioner and the newly impleaded seventh and eighth respondents have now woken up disowning the family arrangement dated 18.01.2006. It is submitted that from and out of 1.35 Acres of land that was available in favour of the legal heirs of late Dharmalingam the father of the petitioner and the vendor of the fifth respondent and seventh and eighth respondents, land in Survey No.675/5 measuring to an extent of 17 Cents has not been developed and will be kept pending disposal of the Suit. It is submitted that for the balance extent of Rs.16.75 Cents (11.25 x 3 - 17) , the fifth respondent either will locate and separate the extent out which has been purchased from the various vendors or the fifth respondent will deposit the market value of the property before the Trial Court to secure the interest of the petitioner and the newly impleaded respondents. It is submitted that since there are alternate remedies available, it is not open for the petitioner to file the present Writ Petition. It is submitted that in any event, the petitioner has filed suit in ______________ https://www.mhc.tn.gov.in/judis Page No 17 of 27 W.P.No.1206 of 2022 O.S.No.128 of 2021 and on this count also, this Writ Petition is liable to be dismissed by directing the petitioner to first work out the remedy before the Trial Court.
26. The learned counsel for the petitioner, by way of rejoinder has relied on the following decisions:-
i. Vineeta Sharma Vs. Rakesh Sharma and others, (2020) 9 SCC 1.
ii. Yellapu Uma Maheswari and another Vs. Buddha Jagadheeswararao and others, (2015) 16 SCC 787.
iii. Korukonda Chalapathi Rao and another Vs. Korukonda Annapurna Sampath Kumar, 2021 SCC OnLine SC 847.
27. It is submitted that the so called family arrangement dated 18.01.2006 is not a document which is recognized in the either of law. In this connection, a reference was made to the decision of the Hon'ble Supreme Court in Yellapu Uma Maheswari and another Vs. Buddha Jagadheeswararao and others, (2015) 16 SCC 787, wherein, the Hon'ble Supreme Court held as under:-
______________ https://www.mhc.tn.gov.in/judis Page No 18 of 27 W.P.No.1206 of 2022 “15. It is well settled that the nomenclature given to the document is not decisive factor but the nature and substance of the transaction has to be determined with reference to the terms of the documents and that the admissibility of a document is entirely dependent upon the recitals contained in that document but not on the basis of the pleadings set up by the party who seeks to introduce the document in question. A thorough reading of both Exts. B-21 and B-22 makes it very clear that there is relinquishment of right in respect of immovable property through a document which is compulsorily registrable document and if the same is not registered, it becomes an inadmissible document as envisaged under Section 49 of the Registration Act. Hence, Exts. B-21 and B-22 are the documents which squarely fall within the ambit of Section 17(1)(b) of the Registration Act and hence are compulsorily registrable documents and the same are inadmissible in evidence for the purpose of proving the factum of partition between the parties. We are of the considered opinion that Exts. B-21 and B-22 are not admissible in evidence for the purpose of proving primary purpose of partition.” (Emphasis supplied)
28. This view was followed in Korukonda Chalapathi Rao and another Vs. Korukonda Annapurna Sampath Kumar, 2021 SCC OnLine SC 847. The decision of the Larger Bench of the Andhra Pradesh High Court in Chinnappareddigari Peda Mutyala Reddy Vs. Chinnappareddigari Venkat Reddy, 1967 SCC OnLine AP 4 : AIR ______________ https://www.mhc.tn.gov.in/judis Page No 19 of 27 W.P.No.1206 of 2022 1969 AP 242, wherein, it was held that the whole process of partition contemplates three phases i.e. severancy of status, division of joint property by metes and bounds and nature of possession of various shares.
In a suit for partition, an unregistered document can be relied upon for collateral purpose i.e. severancy of title, nature of possession of various shares but not for the primary purpose i.e. division of joint properties by metes and bounds. An unstamped instrument is not admissible in evidence even for collateral purpose, until the same is impounded. Hence, if the appellant-defendant want to mark these documents for collateral purpose it is open for them to pay the stamp duty together with penalty and get the document impounded and the trial court is at liberty to mark Exts. B-21 and B-22 for collateral purpose subject to proof and relevance.
29. I have considered the arguments advanced by the learned counsel for the petitioner and the fifth respondent. I have pursued the documents produced by the learned counsel for the petitioner and the fifth respondent.
30. The scope under Article 226 of the Constitution of India is very ______________ https://www.mhc.tn.gov.in/judis Page No 20 of 27 W.P.No.1206 of 2022 limited. If alternate remedy exists, this Court will normally refrain from passing any order especially when there are disputed questions of facts. However, the facts on record indicate that property in question measuring to an extent of 1.35 Acres in Survey Nos.675/5, 684 (0.88 cents), 712/5 (0.37 cents), 699/1 ( 0.07 cents) and 694/2A (0.03 cents), fell in the lap of the family of late Mr.Dharmalingam the father of the petitioner and the impleaded private respondents pursuant to the Judgment and Decree dated 31.07.1979 in partition suit in O.S.No.155 of 1967. The rights of the petitioner and the impleaded respondents stood crystallized then and there.
31. This right of the petitioner, the newly impleaded respondents and the vendor of the fifth respondent which has been recognized in the Judgment and Decree dated 31.07.1979 in O.S.No.155 of 1967 has not been disturbed. The unregistered Deed 18.01.2006 which has been included in the typed set of the fifth respondent filed in support of the petition to vacate the interim stay cannot be construed as a document depicting a Family Arrangement. Prima facie the said document was registrable under Section 17 of the Registration Act, 1908. It is not ______________ https://www.mhc.tn.gov.in/judis Page No 21 of 27 W.P.No.1206 of 2022 registered. Therefore, consequence, under Section 49 of the Registration Act, 1908, is attracted which reads as under:-
49. Effect of non-registration of documents required to be registered.—No document required by section 17 or by any provision of the Transfer of Property Act, 1882 (4 of 1882), to be registered shall —
(a) affect any immovable property comprised therein, or
(b) confer any power to adopt, or
(c) be received as evidence of any transaction affecting such property or conferring such power, unless it has been registered:
Provided that an unregistered document affecting immovable property and required by this Act or the Transfer of Property Act, 1882 (4 of 1882), to be registered may be received as evidence of a contract in a suit for specific performance under Chapter II of the Specific Relief Act, 1877 (3 of 1877), or as evidence of any collateral transaction not required to be effected by registered instrument.]
32. Further, the petitioner has filed the suit in O.S.No.128 of 2021 before the Principal District Judge, Chengalpattu for partition of the suit schedule properties to allot 1/12th share each to the plaintiffs (petitioner and the eight respondent) which land is the subject matter of this Writ Petition. Therefore, the petitioner's rights cannot be trampled upon based on an unregistered deed.
______________ https://www.mhc.tn.gov.in/judis Page No 22 of 27 W.P.No.1206 of 2022
33. The petitioner had earlier filed a Writ Petition before this Court in W.P.No.14949 of 2021 and an order came to be passed on 17.08.2021. Meanwhile, the second respondent also passed an order dated 29.09.2021 stating that the approval cannot be granted in view of the pendency of suit in O.S.No.128 of 2021. However, on 13.11.2021 within two months, the second respondent has accorded permission and granted approval vide impugned orders.
34. A composite approval has been granted for the layout in respect of the land on which the petitioner and the impleaded respondents claim to have a right which is the subject matter of O.S.No.128 of 2021 before the Principal District Judge, Chengalpattu. It is noticed that no approval was granted to the land in S.No.675/5.
35. Though the petitioner has an alternate remedy under Section 79 of the Tamil Nadu Town and Country Planning Act, 1971, I am inclined to hold that the impugned orders granting approval to the fifth respondent contrary to the earlier legal opinion given by the Government Pleader on ______________ https://www.mhc.tn.gov.in/judis Page No 23 of 27 W.P.No.1206 of 2022 29.09.2021 based on a revised opinion of the Government Pleader as irregular to the extent of land in S.Nos.712/5, 694/2A, 699/1 and 684. At the same time, the entire project cannot be put to jeopardy as members have vested with the fifth respondent.
36. The fifth respondent is directed to clearly inform its members that the land in S.Nos.712/5, 694/2A, 699/1 and 684 is the subject matter of O.S.No.128 of 2021 before the Principal District Judge, Chengalpattu and therefore, allotment and sale / registration will be subject to final outcome of the aforesaid suit in O.S.No.128 of 2021.
37. The Principal District Judge, Chengalpattu is requested to complete the Trial in O.S.No.128 of 2021 and pass a preliminary decree and final decree as expeditiously as possible preferably, within a period of twelve months from the date of receipt of a copy of this order. The fifth respondent shall refrain from selling and/or allotting or registering the land in S.Nos.712/5, 694/2A, 699/1 and 684 pending disposal of O.S.No.128 of 2021 before the Principal District Judge, Chengalpattu. ______________ https://www.mhc.tn.gov.in/judis Page No 24 of 27 W.P.No.1206 of 2022
38. This Writ Petition stands partly allowed. No cost. Consequently, connected Miscellaneous Petitions are closed.
08.07.2022 Internet : Yes/No Index : Yes / No kkd / jen To
1.The Director, Directorate of Town & Country Planning, Opposite LIC, Chengalvarayan Building, Fourth Floor, 807, Anna Salai, Chennai – 600 002.
2.The Deputy Director, Town and Country Planning, Chengalpattu Region, No.1424, GST Road, Periyar Shopping Complex, Chengalpattu – 603 001.
3.The Block Development Officer, Thiruporur Panchayat Union, Thiruporur, Chengalpattu District.
4.The President, Thaiyur Panchayat, Thaiyur, Thiruporur Taluk, Chengalpattu District.
5.The Sub Registrar, ______________ https://www.mhc.tn.gov.in/judis Page No 25 of 27 W.P.No.1206 of 2022 Tiruporur, Chengalpattu District.
6.The Principal District Court, Chengalpattu.
C.SARAVANAN, J.
Jen ______________ https://www.mhc.tn.gov.in/judis Page No 26 of 27 W.P.No.1206 of 2022 Pre-Delivery Order in W.P.No.1206 of 2022 and W.M.P.Nos.1282 & 1286 of 2022 08.07.2022 ______________ https://www.mhc.tn.gov.in/judis Page No 27 of 27