Madras High Court
Kanagam And Ors. vs The Commissioner, Coimbatore ... on 1 February, 2008
Equivalent citations: (2008)3MLJ185, AIR 2008 (NOC) 1601 (MAD.)
Author: Elipe Dharma Rao
Bench: Elipe Dharma Rao
JUDGMENT Elipe Dharma Rao, J.
1. The above Writ Appeal is directed against the common order of the learned single Judge dated 20.07.2005 made in W.P. No. 18228 of 1994 along with two other writ petitions.
2. The case of the writ petitioners was that the property situated in T.S. No. 936, T.P. Scheme, No. 8 Race Course Road, Coimbatore, originally belonged to one Thandavan Chettiar and that by separate sale deeds executed in the year 1975, the various plots laid out in the said survey number were sold to them by the said Thandavan Chettiar and the said lay out also provided for a passage of 20 feet width. While the said private passage belongs to the petitioners, who purchased different plots sold out by the late Thandavan Chettiar with their rights to use it as a private passage to approach their respective plots from the main road, respondents 5 and 6 got a plan sanctioned in their favour by the Corporation of Coimbatore by allegedly showing this private passage which is adjacent to their property. Hence, the writ petition.
3. After hearing both sides, the learned single Judge dismissed the same along with other two petitions; against which, some writ petitioners have filed the present appeal.
4. Heard the learned counsel for both sides.
The petitioners filed the writ petition against the order of the Commissioner of Coimbatore Corporation dated 06.01.1987 and also the order of the Deputy Director of Town and Country Planning, Coimbatore dated 19.82.1987, through which the 2nd respondent Deputy Director approved the sub-division of the plots as per the letter dated 06.01.1987 by the Commissioner with the following conditions;
1. The construction should not be a multi-storied building in the approved sub-division part.
2. The previous plan is also applicable to the approved sub-division part.
3. The boundaries of the approved sub-divisions will not be changed without the prior permission of this office.
5. Further, the petitioners were aggrieved by the resolution No. 580 dated 12.08.1986 passed by the Corporation declaring the private passage of the writ petitioners in S. No. 936 T.P. Scheme No. 8, Race Course Road, Coimbatore, which was purchased through separate sale deeds executed in the year 1975 by one Thandavan Chettiar, as common pathway at the instance of one Jayaraj. The contention of the writ petitioners was that by order dated 28.91.1986, the 1st respondent directed to put necessary street lights, road, drainage, etc. from the amount of Rs. 31,813/- which was paid by the said Jayaraj and the action of the 1st respondent is affecting their right to usage and enjoyment of the private pathway. The learned Judge, after considering the contentions of both parties, dismissed the writ petitions holding that non-publication of the declaration made under Section 255(1) would not invalidate the same. Against which, the present appeal is filed.
6. Section 255 of the Coimbatore City Municipal Corporation Act (hereinafter referred to as the Act) reads as follows:
255. Power to daclara private as public street:
(1) If any street has been levelled, paved, metalled, flagged, channelled, sewered, drained, conserved and lighted under the provisions of Section 254, such street, shall on the requisition of a majority of the owners referred to in Sub-section (1) of that section, be declared as a public street.
(2) The Commissioner shall publish every declaration made under Sub-section (1) in the Coimbatore District Gazette.
8. Therefore, it is clear that if a street is levelled or repaired, as per the request of majority of the owners, it shall be a 'public street' within the meaning of the Act and the Commissioner shall publish every such declaration in the Gazette. In the case on hand, as stated by the Corporation, on an application made by one Jayaraj on behalf of various plot owners, the Corporation has passed a resolution on 12.08.1986 declaring the said passage as a public street. Pursuant to the requisition, the said Jayaraj paid the amount of Rs. 31,813/- towards the charges for laying of the roads, drainage and culverts, etc.
8. The first contention of the learned senior counsel for the appellants is that the aforesaid contention of the Corporation is contrary to Sub-section (1) of Section 255 of the said Act, which contemplates requisition of a majority of the owners. The second contention is that though the resolution was passed declaring the private pathway as a public street, the same was not published in the Coimbatore District Gazette. Therefore, for non-compliance of the above said requirements, the action of the Corporation is vitiated.
9. On the other hand, it is the admitted case of the Corporation that they have not passed the resolution at the instance of the abovesaid Jayarj, and the resolution was passed on the requisition of majority of the owners and after receipt of the development charges. But the learned Judge, on consideration of the facts and circumstances of the case, held that the said passage is still a private passage irrespective of the above referred to proceedings; that, therefore, it may be open for the petitioners to move the appropriate civil forum for declaration of their right, in these writ petitions; that it was impossible to consider the said claim of the petitioners as that would involve very many disputed questions of fact, which could not be gone into in these writ petitions; and that so long as the declaration made by the Corporation of Coimbatore dated 12.08.1986 in the form of proper resolution passed by it remains on record, the impugned proceedings, which came to be issued apparently based on the said resolution, could not be interfered with.
10. After hearing the arguments of both sides and after going through the provisions contemplated under the Coimbatore City Municipal Corporation Act, we are of the opinion that the learned Judge has not noticed Sub-section (1) of Section 255, which requires a requisition by majority of the owners in declaring the private passage as a public road. But in the present case, at the instance of one person, the resolution was passed, declaring the private pathway as a public street only on the ground that he has remitted the amount of Rs. 31,813/- for laying roads, drainage, culverts, etc. and the resolution passed was not publicised in compliance with Sub-section (2) of Section 235 of the said Act.
11. Therefore, to that extent, we are of the opinion that the action of the 1st respondent Corporation is not in compliance with the provisions of law contemplated under Section 255 of the Act.
12. It is pertinent to note Section 49 of the said Act, which reads as follows:
49. Power to suspend or cancel resolutions, etc. under this Act:
(1) The Government may at any time by order in writing-
(i) suspend or cancel any resolution passed, order issued, or licence or permission granted;...
(a) such resolution, order, licence, permission or act has not been legally passed, issued, granted or authorized, Provided that the Government shall before taking action under this section on any of the grounds referred to in Clauses (a)(b) and (c) give the authority or person concerned an opportunity for explanation.
13. Thus, as could be seen from the above provision of law, the Government has got ample power to suspend or cancel any resolution passed, after affording an opportunity to the concerned person, to explain the same. In view of the above provision of law, the petitioners, who are aggrieved upon the resolution passed by the Corporation at the instance of the 5th respondent, instead of approaching this Court, should have approached the Government and sought for exercise of the power conferred on the Government under Section 49 of the Act.
14. Therefore, we set aside the order of the learned single Judge and direct the petitioners to approach the Government under Section 49 of the said Act, within a period of eight weeks from the date of receipt of a copy of this Order and on such filing of the representation, the Government shall dispose of the same in accordance with law, within twelve weeks thereafter. Till such time, status quo as on today shall continue.
Writ appeal is disposed of accordingly. No costs.