Madras High Court
Unknown vs The Commissioner on 10 August, 2022
Author: C.Saravanan
Bench: C.Saravanan
W.P.No.8544 of 2010
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved On 15.07.2022
Pronounced On 10.08.2022
CORAM
THE HON'BLE MR.JUSTICE C.SARAVANAN
W.P.No.8544 of 2010
and
M.P.No.1 of 2010
1.K.Ravichandran
2.B.A.Govindaswami (deceased)
3.G.Srinivasan
4.A.Adikesavalu
(P1 and P3 are rep. by their Power of
Attorney Agents P2 and P4)
5.Mrs.K.Saroja
6.Mrs.S.Shanthi
7.Mrs.G.Bharathi
(P5 and P7 are rep. by their constituted
Power of Attorney Agent P4)
8.G.Gowri
9.G.Anuradha
______________
https://www.mhc.tn.gov.in/judis
Page No 1 of 23
W.P.No.8544 of 2010
10.G.Anandhi ... Petitioners
(P8 to P10 impleaded vide order dated
30.07.2018 in M.P.No.1 of 2012)
Vs.
The Commissioner,
Greater Chennai Corporation,
Ripon Buildings, Chennai – 3. ... Respondent
(Respondent substituted vide order dated
18.03.2022 made in Memo dated 11.03.2022)
Writ Petition filed under Article 226 of the Constitution of India,
for issuance of a Writ of Certiorarified Mandamus, to call for the entire
records of the impugned order dated 29.06.2009 of the respondent
bearing Ref.No.Na.Ka.2390/2006, and quash the same and consequently,
direct the respondent to grant the sanction plan with construction
permission under Building Application (BA) dated 12.06.2000 in
B.A.No.411/2000, to the fourth petitioner as applied for the petitioner's
land of an extent of 2998 sq.ft. more fully described in the schedule.
For Petitioners : Mr.SMani
For Respondent : M/s.Karthikaa Ashok
Standing Counsel
______________
https://www.mhc.tn.gov.in/judis
Page No 2 of 23
W.P.No.8544 of 2010
ORDER
The petitioner has challenged the impugned communication dated 29.06.2009 bearing Reference.No.Na.ka.2390/2006 of the first respondent, Commissioner of Alandur Municipality. However, subsequently, Alandur Municipality was merged with the Chennai Corporation. Thus, the cause title was amended by an order dated 18.03.2022 by substituting the name of the Commissioner of Alandur Municipality, Alandur, Chennai 600 016 with the Commissioner of Corporation, Greater Chennai.
2. The Petitioners claim to be the owners of the land measuring an extent of 45 Cents out of 1.85 Acres compromised in composite S.No.47 in Venugopalapuram, No.134 Nangallur Village, Saidapet Taluk, Chengalpattu District.
3. Earlier, W.P.No.18229 of 2000 was filed by the petitioners along with their family members against an order dated 22.06.2000 of the first respondent therein the Commissioner, Alandur Municipality and for a consequential direction to grant sanction to the plan for construction on ______________ https://www.mhc.tn.gov.in/judis Page No 3 of 23 W.P.No.8544 of 2010 the subject land. The said Writ Petition was disposed by this Court on 29.09.2006 with the following observations:-
3. At the outset, we would like to express our opinion that the direction sought for in this writ petition cannot be ordered, as there appears to be some discrepancy in the survey numbers in land for which the petitioners have applied for regularization.
But the application of the petitioners has been rejected among other grounds, viz., the CMDA has objected for such approval. Though a reference is made in the impugned order as to the above aspect, there is no mention as to the proceedings of the CMDA and the petitioners were also not given a copy of such proceedings objecting to the grant of planning permission. Hence, without expressing any opinion, we remit the matter to the Commissioner, Alandur Municipality to furnish a copy of the objections said to have been made by the CMDA, which has been referred to in the impugned order, and after obtaining the same, the petitioners shall re- present the application along with a copy of this order within 15 days from the date of receipt of a copy of this order. The Commissioner shall also take into consideration of the decree that was obtained by the petitioners in respect of the land for which they claim ownership and for the property for which they had applied for planning permission. The above exercise shall be completed by the third respondent- Commissioner, Alandur Municipality within a period of eight weeks from the date of receipt of a copy of this order or on production of the same by the petitioners. The writ petition is disposed of accordingly. No costs.
______________ https://www.mhc.tn.gov.in/judis Page No 4 of 23 W.P.No.8544 of 2010
4. The petitioners had also filed Cont.P.No.1713 of 2007 against the respondents therein for non compliance of the aforesaid order of this Court dated 22.09.2006. This Contempt Petition was however closed by this Court on 05.12.2007 by directing the CMDA to decide and communicate the final order of objection to the petitioner. Subsequently, another Contempt Petition in Cont.P.No.408 of 2009 was filed by the petitioners to punish the respondents for disobeying the above said order of this Court dated 22.09.2006, which was closed as the respondents issued the impugned order dated 29.06.2009.
5. In the above mentioned Contempt proceeding, the respondents submitted that the records pertaining to the time graph of actual handing over of the road and the road being taken over and maintained by the respondents, were untraceable.
6. Relevant portion of the impugned order sated 29.06.2009 of the first respondent Commissioner of the Alandur Municipality, reads as under:-
______________ https://www.mhc.tn.gov.in/judis Page No 5 of 23 W.P.No.8544 of 2010 ghh;it 2y; fz;Ls;s ,t;tYtyf fbjk; njhlh;ghf> Mye;J}H efuhl;rp vy;iyf;Fl;gl;l eq;fey;Y}H fpuhkk; g.r.vz;.47/5V ghHl; MH.v];.ne.21.5> NtZNfhghyGuk; vd;w ,lj;jpy;
Rw;Wr;RtH fl;l mDkjp Nfhhp kDjhuH
jpU.V.MjpNfrtY vd;gtH nrd;id CaHePjp
kd;wj;jpy; Contemp Petition No.1713/2007 f;F gpd; tof;fwpQH %yk; ghHit 1y; kD nra;jhH.
Nkw;gb kD nrd;id ngUefu tsHr;rpf; FOkj;jpw;F 31.01.2008y; mDg;gg;gl;lJ. mjd; Nghpy; ghHit 3y; fz;Ls;s cWg;gpdH nrayH nrd;id ngUefu tsHr;rpf; FOkk; mtHfspd;
fbljj;jpy; jpU.MjpNfrtY kDtpd; kPJ Rw;Wr;RtH fl;l jpl;l mDkjp toq;f ,ayhJ vd gjpy; mDg;gg;gl;Ls;sJ.
7. This is the second attempt of the petitioners to get an approval for putting up a compound wall over the patch of land measuring an extent of 2998 sq.ft. [6.88 Cents out of 45 Cents in S.No.47/5A, R.S.No.21/5, Ward No.B, Venugopalapuram, 134 Nanganallur Village, Saidapet Taluk, Chennai M.G.R.District]. The petitioners have filed a copy of a D.D.T.P. Sanctioned Layout No.4/72 (Revised Layout of T.P/D.T.P.No.132/68). As per the aforesaid approved layout, the total extent of land has been given as 4.11 Acres consisting of 37 plots.
8. The second petitioner and the fourth petitioner and late A.Krishnan are sons of late Muniammal and Iyyasami Naidu. The first and fifth to seventh petitioners are the legal heirs of late A.Krishnan who ______________ https://www.mhc.tn.gov.in/judis Page No 6 of 23 W.P.No.8544 of 2010 died before filing of this Writ Petition. During the pendency of this Writ Petition, the second petitioner namely B.A.Govindaswami died. He was also the power of attorney agent of the first and third petitioners. Thereafter, vide order dated 30.07.2018, eight to tenth petitioners were impleaded as legal heirs of the second petitioner late B.A.Govindaswami.
9. The facts on record indicate that the late P.Subba Naidu the father of the said late Muniammal had executed a Settlement Deed dated 25.08.1942 giving a life interest in favour of his daughter late Muniammal and absolute title in favour of her three sons namely, the second petitioner [late B.A.Govindaswami], the fourth petitioner [A.Adikesavalu] and the late A.Krishnan the father of the first petitioner and other legal heirs of late A.Krishnan. The copy of the aforesaid Settlement Deed has also been enclosed along with the typed set of documents filed by the petitioners. A reading of the recitals from the aforesaid Settlement Deed dated 25.08.1942 indicates that an extent of 45 Cents of land out of 1.85 Acres in S.No.47/5 was settled in favour these four persons.
______________ https://www.mhc.tn.gov.in/judis Page No 7 of 23 W.P.No.8544 of 2010
10. One A.J. Kurien appears to have purchased an extent of 1.15 Acres in S.No.47/5 from the owner who was said to be enjoying the property. After his death, the ownership appears to have passed on to his son A.J.Chandy John. It appears that a small portion was later purchased by A.J.Chandy John and thereby, 1.39 Acres out of 1.85 Acres in S.No. 47/5 came into the possession of A.J.Chandy John.
11. The said A.J.Chandy John appears to have obtained a layout approval from the then Alandur Municipality vide LPDM No.4/72 which appears to have been later revised vide Plan Approval No.20/72 by the DTCP. In the said layout, the land measuring an extent of 45 Cents in S.No.47/5 owned by the family members of the petitioners appears to have been shown as the reserved area/for public purpose.
12. Therefore, the second and fourth petitioners along with their brother late A.Krishnan and their mother late Muniammal filed O.S.No.286 of 1981 before the Sub Court, Chengalpattu, for a declaration of title and for recovery of possession of the suit property, wherein, the ______________ https://www.mhc.tn.gov.in/judis Page No 8 of 23 W.P.No.8544 of 2010 said A.J.Chandy John and few others were arrayed as the defendants along with Alandur Municipality. The said suit was decreed as prayed for on 03.12.1983.
13. Aggrieved by the same, the private defendants in the said suit filed A.S.No.63 of 1984 before the District Court, Chengalpattu (First Appellate Court). The First Appellate Court, by its Judgment and Decree dated 28.05.1985, affirmed the Judgment and Decree of the Trial Court by its Judgment and Decree dated 03.12.1983 and held that out of the total extent of 1.85 Acres of land in S.No.47/5, an extent of 45 Cents had been settled in favour of the said late Muniammal and her three sons. The First Appellate Court has further concluded that the land in S.No.47/5 measuring an extent of 1.39 Acres lies on the west of the land of Kuppammal who is the mother / grandmother of the plaintiffs in O.S.No.286 of 1981. The First Appellate Court further observed as under:-
So the 1st defendant claims that he has got only 1.39 acres or 1.40 acres in S.F.No.47/5 by virtue of the settlement deed and not the entire extent of S.F.No.47/5 viz., 1.85 acres. Hence the plaintiffs have claimed titled only to that extent viz., 45 cents.
______________ https://www.mhc.tn.gov.in/judis Page No 9 of 23 W.P.No.8544 of 2010 Therefore, it is clear that defendants 1 and 2 have title only to the extent of 1.39 acres or 1.40 acres as claimed in their written statement. So it is to be held that the defendants 1 and 2 have no titled to the suit 45 cents. Then we have to decide as to whether the plaintiffs have established their title as claimed by them. Exs.A-7, A-8 are the copies of the sale deeds and they have been executed by Elliah Naidu and Vengagi Ammal in favour of A.C.Kurian respectively. In these two documents description of the property is given as property situtate east of Kuppammal's land. The said Kuppammal is none other the the maternal grand mother of plaintiffs 2 to 4. The trial Court in para 11 of its judgment considered Ex.A-7 and Ex.A-8 and has held that “the contention that the predecessors-in-title to the 1st defendant viz., Chandy John the properties sold under these two sale deeds are situate on the est of Kuppammal's land”.
That means the land on the west is that of A.C.Kurian and from whom the 1st defendant now has got. The said Kuppammal is none other the grandmother of the plaintiffs 2 to 4, who in turn wife of P.Subba Naidu. What is the answer of the 1st defendant for this? There is no answer for this by the 1st defendant.
14. A further appeal in S.A.No.160 of 1986 before this Court was dismissed by a Judgment and Decree dated 30.04.1993 confirming the Judgment and Decree of the Trial Court and First Appellate Court. ______________ https://www.mhc.tn.gov.in/judis Page No 10 of 23 W.P.No.8544 of 2010
15. During interregnum, the petitioners claim to have also taken delivery of the suit property measuring an extent of 45 Cents, on 29.04.1985 in E.P.No.46 of 1984 in O.S.No.286 of 1981 on the file of the Sub Court, Poonamallee as was acknowledged in the Bailiff's Report dated 07.05.1985.
16. The petitioners filed an application dated 12.06.2000 for sanction plan for construction of a building on the land measuring an extent of 2998 sq.ft. (6.88 Cents) claiming it to be a part of 45 cents in S.No.47/5A. It was rejected stating that there is a 40 feet public road laid by the Corporation in the same piece of land and thereby asked the petitioners to comply with certain requirements. Thus, the petitioners along with their siblings had approached the Court in W.P.No.18229 of 2000. The said Writ Petition came to be disposed by this Court on 22.09.2006 with certain directions to the CMDA which has been extracted above in this order.
17. The plan approval submitted by the respondent refers to a Layout Plan No.4/1972. The plan appears to have been accorded ______________ https://www.mhc.tn.gov.in/judis Page No 11 of 23 W.P.No.8544 of 2010 approval as per letter No.4421/1972. However, another copy of the Layout No.4730/1972 dated 10.05.1973 is available which is contrary to the former. It is submitted that even otherwise, the land measuring an extent of 45 Cents is situated outside the approved layout.
18. On the other hand, it is the case of the petitioners is that in absence of the gift deed for road / acquisition of the same under Section 56 of the Tamil Nadu Town and Country Planning Act,1971, the respondent has no right over the land in any manner known to law.
19. This Writ Petition is resisted by the respondent Corporation. It is submitted that there are no merits in the present Writ Petition as there is no dispute that the subject land measuring an extent of 2998 sq. ft. is on the public road as per the approved lay out plan No.20/1972 (formerly approved plan No.4/1992) of the Directorate of Town and Country Planning vide LPDM No.4/72.
20. It is further submitted that the petitioners have tried to usurp the land which was earmarked for road. It is also submitted that the ______________ https://www.mhc.tn.gov.in/judis Page No 12 of 23 W.P.No.8544 of 2010 petitioner has already sold an extent of 10372 sq.ft (964.45 sq.mt.) after execution of Power of Attorney dated 21.12.1995. In this connection, the learned Standing Counsel for the respondent has referred to schedule given in the said Power of Attorney, implying the petitioner has acknowledged that 40 ft road existed to access 60 feet road on the Southern side and the property of the first petitioner's father late Tr.A.Krishnan on the western side.
21. It is also submitted that a Sale Deed dated 29.01.1998 was also registered. It is submitted that the petitioners cannot claim any right over the land which was earmarked for public purpose. It is further submitted that the land which was earmarked for public purpose has already been taken over by the petitioners, pursuant to E.P.No.46 of 1984 in O.S.No.286 of 1981 after a delivery warrant was issued by the Subordinate Judge, Poonamallee on 29.04.1985 in the presence of Bailiff as acknowledged by the Bailiff's in his Report dated 07.05.1985 and therefore the petitioners cannot claim any additional rights over the land measuring an extent of 2998 sq.ft. over and above 45 cents of land. It is therefore, stated that there is no error in the impugned order passed by the ______________ https://www.mhc.tn.gov.in/judis Page No 13 of 23 W.P.No.8544 of 2010 respondent and therefore stated that the Writ Petition is liable to be dismissed.
22. I have considered the arguments advanced by the learned Senior Counsel for the petitioners and learned Standing Counsel for the respondent.
23. The approved layout mentioned above covers a total extent of 4.11 Acres of land covering the land in S.Nos.56 & 47. The land measuring an extent of 1.85 Acres in S.No.47/5 was the subject matter of above approved layout. The land in S.No.47/5A measuring an extent of 45 Cents appears to be part and parcel of the aforesaid extent. The dispute in respect of 45 Cents of land was the subject matter of previous round of litigation in O.S.No.286 of 1981, A.S.No.63 of 1984 and S.A.No.160 of 1986.
24. The petitioners have given different boundaries for their property at different point of time by including 2998 sq.ft. into 45 Cents in S.No.47/5. In O.S.No.286 of 1981, the boundary of the property has ______________ https://www.mhc.tn.gov.in/judis Page No 14 of 23 W.P.No.8544 of 2010 been given by the plaintiffs i.e., the second and fourth petitioners herein along with the father of the first petitioner late A.Krishnan and their mother Muniammal, is as follows:-
(Note: John referred above is the A.J.Chandy John)
25. A reading of the Judgment and Decree dated 28.05.1985 of the First Appellate Court in A.S.No.63 of 1984 shows that the land measuring an extent of 1.39 Acres was sold by Ex.A7 dated 19.07.1946 and Ex.A8 dated 05.09.1946 by one Elliah Naidu and one Vengagi Ammal respectively to A.C.Kurian the father of A.J.Chandy John.
26. Conflicting views are discernible from a reading of the Judgment and Decree of the Trial Court and also the First Appellate ______________ https://www.mhc.tn.gov.in/judis Page No 15 of 23 W.P.No.8544 of 2010 Court and the Settlement Deed. As per the Settlement Deed and the averments made in support of the suit filed by the second and fourth petitioners along with their brother late A.Krishnan and their mother Muniammal indicate that the land measuring an extent of about 1.39 Acres was sold by Elliah Naidu and Vengagi Ammal in favour of A.C.Kurian was was later passed on to John who had plotted the land in S.No.47/5 along with the land in S.No.56.
27. The Settlement Deed dated 25.08.1942 purportedly executed by P.Subba Naidu in favour of the plaintiffs in O.S.No.286 of 1981 indicates that the entire extent of land in S.No.47/5 measuring an extent of 1.85 Acres stood in the name of P.Subba Naidu.
28. There are several disputed questions of facts. The decision of the Trial Court also contains bundle of contradiction. Therefore, the identity of the land measuring an extent of 2998 sq.ft. (6.88 Cents) cannot be determined in this Writ Petitioner. Thus, I am inclined to dismiss this Writ Petition.
______________ https://www.mhc.tn.gov.in/judis Page No 16 of 23 W.P.No.8544 of 2010
29. In the said Judgment and Decree, it is further stated that from a reading of the recital, it is evident that the land measuring an extent of 1.39 Acres was purchased by the said A.C.Kurian from Elliah Naidu and Vengagi Ammal and the land purchased was situated to the east of land of Kuppammal who is none other than the grand mother of the said
(i) late A.Krishnan, (ii) late B.A.Govindasamy & (iii) A.Adikesavalu though her daughter Muniammal. If the above position is considered, 45 Cents of land which was settled vide Settlement Deed dated 25.08.1942 and the land measuring 139 Cents would be as follows:-
Petitioners A.C.Kurian
45 Cents 1.39 Acres
30. In the Power of Attorney dated 21.12.1995 executed in favour of M/s.Nu-Built Housing and Property Development Private Limited by the three brothers and their sons, i.e. A.Krishnan, K.Ravichandran, B.A.Govindaswamy, G.Srinivasan and A.Adikesavalu, the boundary of ______________ https://www.mhc.tn.gov.in/judis Page No 17 of 23 W.P.No.8544 of 2010 10376 sq.ft. out of 45 Cents has been given as follows:
31. The Schedule in Power of Attorney dated 21.12.1995 reads as under:-
All that piece and parcel of vacant land measuring 964 sq.mts. as per patta comprised in Old S.No.47/5A part, R.S.No.21/5, Ward No.B, Block No.1, old patta No.235, dated 28.05.81, New patta F.2 No.11712/94-95 dated 30.12.94 situate at Venugopalapuram of No.134 Nanganallur Village, Saidapet Taluk, Chennai M.G.R. District.
32. In the Sale Deed dated 29.01.1998 executed in pursuance to the above power of attorney dated 21.12.1995, an identical boundary has been given though the extent of conveyed property by the aforesaid Sale Deed dated 29.01.1998 registered as Document No.9319 was 10372 sq.ft. as detailed below:-
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33. Now, the land measuring an extent of 2998 sq.ft. (6.88 Cents) out of 45 Cents, is shown to the east of 40 feet road as above. In W.P.No.18229 of 2000 filed earlier, the boundary of the land in question measuring an extent of 2998 sq.ft. (6.88 Cents) has been given as follows:-
______________ https://www.mhc.tn.gov.in/judis Page No 19 of 23 W.P.No.8544 of 2010
34. In the Cont.P.No.408 of 2009 filed by the petitioners before this Court, the boundary of the property has been given as follows:-
35. A reading of the above boundaries, when compared with the approved layout as mentioned above indicates that the attempt of the petitioners is to claim the ownership of the land where the 40 feet Road exists. Therefore, the attempt of the petitioners to put up a construction over the land where 40 feet road exists even as per the Power of Attorney executed on 21.12.1995 and the Sale Deed dated 29.01.1998, cannot be allowed straight away.
36. Several disputed questions of fact arise for consideration in this Writ Petition. It cannot be decided based on the possession of land given to the petitioners pursuant to the Judgment and Decree in O.S.No.286 of ______________ https://www.mhc.tn.gov.in/judis Page No 20 of 23 W.P.No.8544 of 2010 1981 and in E.P.No.46 of 1984. The identity of the property remains to be in doubt. Further, from the facts of the case, it is not clear as to whether the property in question measuring an extent of 2998 sq.ft. (6.88 Cents) which is subject matter of the present Writ Petition, really forms part of the 45 Cents in S.No.47/5, possession of which was allegedly taken pursuant to the Judgment and Decree of the Trial Court as affirmed by the First Appellate Court and Second Appellate Court and in the Execution Proceedings. The petitioners have thus not made out any case for grant of relief at this stage.
37. It is however open for the petitioners to work out a suitable remedy for declaring that the land measuring an extent of 2998 sq.ft. (6.88 Cents) in S.No.47/5A out of total extent of 1.85 Acres of land in S.No.47/5, is part of 45 Cents of land which was subdivided as S.No.47/5A out of S.No.47/5 in accordance with law.
38. The petitioners also have an alternate remedy before the Government under the provisions of the Tamil Nadu Town and Country Planning Act, 1971, in terms of G.O.(Ms) No.86, Housing & Urban ______________ https://www.mhc.tn.gov.in/judis Page No 21 of 23 W.P.No.8544 of 2010 Development Department, dated 16.05.2017.
39. For the reasons stated above, this Writ Petition stands dismissed with the above observations. No cost. Consequently, connected Miscellaneous Petition is closed.
10.08.2022 Internet : Yes/No Index : Yes / No Jen To The Commissioner, Greater Chennai Corporation, Ripon Buildings, Chennai – 3.
______________ https://www.mhc.tn.gov.in/judis Page No 22 of 23 W.P.No.8544 of 2010 C.SARAVANAN, J.
Jen Pre-Delivery Order in W.P.No.8544 of 2010 and M.P.No.1 of 2010 10.08.2022 ______________ https://www.mhc.tn.gov.in/judis Page No 23 of 23