Madras High Court
P.Jeevanantham vs The Commissioner Of Town on 7 July, 2015
Author: R.Mahadevan
Bench: R.Mahadevan
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 07.07.2015
CORAM
THE HONOURABLE MR.JUSTICE R.MAHADEVAN
W.P(MD)No.16071 of 2014
and
M.P(MD)No.2 of 2014
P.Jeevanantham,
rep. by his power of Attorney
Mr.P.Ponnusamy ... Petitioner
Vs.
1.The Commissioner of Town
and Country Planning,
Office of the Commissioner and Town
and Country Planning,
No.807, Anna Salai,
Chennai 600 002.
2.The Deputy Director of Town
and Country Planning,
Southern Region,
No.4, Hakeem Ajmal Khan Road,
Chinnachakkikulam,
Madurai.
3.The District Collector,
Virudhunagar District,
Virudhunagar.
4.The President,
South Venganalloor Panchayat,
Rajapalayam Taluk,
Virudhunagar District.
... Respondents
PRAYER
Writ Petition is filed under Article 226 of the Constitution of India
praying to issue a Writ of Certiorarified Mandamus to call for the records
relating to the impugned proceedings of the 1st respondent in Na.Ka.No.
22022/2013/BA1 dated 01.08.2014 in so far as it relates to special condition
No.1 requiring the petitioner to donate free of cost the land to an extent of
1341.26 sq mts. to the 4th respondent panchayat is concerned and the
consequential impugned proceedings of the 2nd respondent in Nalla No.
2169/2013/MM3 dated 18.08.2014 in so far as it requires the donation of the
said land is concerned and quash the same as illegal and consequently forbear
the respondent from in anyway insisting the petitioner to convey the said
lands belonging to the petitioner in favour of the respondents, and pass such
further or other orders as this Hon'ble Court may deem fit and proper in the
circumstances of the case and thus render justice.
!For Petitioner : Mr.Mahaboob Athief for
M/s Ajmal Associates
^For Respondent : Mr.S.Sadeeshkumar
Additional Govt. Pleader
for R1 to R3
No appearance for R4
:O R D E R
This writ petition has been filed seeking a Writ of Certiorarified Mandamus to call for the records relating to the impugned proceedings of the 1st respondent in Na.Ka.No. 22022/2013/BA1 dated 01.08.2014 insofar as it relates to special condition No.1 requiring the petitioner to donate free of cost the land to an extent of 1341.26 sq mts. to the 4th respondent panchayat is concerned and the consequential impugned proceedings of the 2nd respondent in Nalla No. 2169/2013/MM3 dated 18.08.2014 insofar as it requires the donation of the said land is concerned and quash the same as illegal and consequently forbear the respondent from in anyway insisting the petitioner to convey the said lands belonging to the petitioner in favour of the respondents,
2. Heard both sides.
3. The learned Counsel for the petitioner would submit that the issue involved in this writ petition is squarely covered by the earlier order of this Court in G.Dilip Kumar and 5 others v. The Member Secretary, Chennai Metropolitan Development Authority [W.P.Nos.148 of 2014, 18541 of 2012, 12581 of 2012 and 5188 of 2013, decided on 06.02.2015] and hence, prayed for passing similar order in this writ petition also.
4. The learned Additional Government Pleader for the respondents 1 to 3 has no objection for passing similar orders.
5. In G.Dilip Kumar and 5 others v. The Member Secretary, Chennai Metropolitan Development Authority [W.P.Nos.148 of 2014, 18541 of 2012, 12581 of 2012 and 5188 of 2013, decided on 06.02.2015], this Court has passed the following order:
"Heard the learned counsel for the parties.
2.The petitioners seek for issuance of planning permission to their respective premises without insisting them to hand over the area earmarked for the proposed road widening through a registered gift deed to the CMDA or to the Corporation of Chennai.
3.There is no dispute that the petitioners are the owners of their respective property. The petitioners have sought for planning permission to put up construction on the said property. A portion of their land is likely to be acquired for the purpose of road widening. Therefore, the planning authority are insisting the petitioners to give gift deed.
4.Learned counsel for the Chennai Corporation submitted that in terms of the Second Master Plan, by referring to Rule 9, which deals with Transferable Development Rights, such right shall apply to cases where a private land is required for any road widening. In terms of Annexure-XXI, regulations for transfer of transferable development rights have been framed, which are given in lieu of monetary compensation to the extent and on the condition set down under the regulations. It is further submitted that the award will entitle the owner of the land to FSI in the form of Development Right Certificate (DRC), which he may use himself or to any other person. Therefore it is stated that in terms of Regulation 7, before getting a DRC, the land should be gifted to the Member Secretary, CMDA.
5.It is to be pointed out that even in respect of the lands, which are developed into house layouts by dividing them into plots, the common areas and the public purpose sites are compelled to be gifted to the local authority. The purpose behind such gift deed is to ensure that the land, which is reserved for park, road, etc., are maintained as such. Therefore, the local authority becomes a guardian of those lands and to ensure that, the purpose of reservation is preserved forever. The regulation rather puts a premium on the developer of the property by compelling him to surrender his own land in view of the DRC, which appears to be a freely tradeable commodity and may even land in the hands of the unscrupulous developers, who have violated the provisions of the Rules. That apart, the second master plan was notified on 2nd December, 2008 and till date, nothing has happened and no steps have been taken for widening the road.
6.In the light of the above, this Court is of the view that it may be true that the interest of the Government should be protected, as there is a need for wider roads and the need is in public interest. At the same time, the interest of the small land owners, who own the land abutting the existing road, cannot be forgotten. Therefore, this Court, in several writ petitions issued directions directing the owner of the land to file an affidavit of undertaking to hand over the front portion to the maximum extent required and also undertaking to keep the area free from any construction and subject to such undertaking, the planning permission application was directed to be processed and if it satisfies the other conditions, planning permission to be granted subject to the endorsement that the approval is granted based on the undertaking given by the petitioner and in the event of requirement of the front portion of the land, the land owner or their successors in interest will hand over the land without any resistence.
7.Therefore, this Court is of the view that the same direction should be issued in these cases also. Accordingly, the writ petitions are disposed of, directing the petitioners to submit an affidavit of undertaking not to put up any construction in the area earmarked for the purpose of road widening and keeping the area clear and also undertake to surrender the portion for implementation of road widening without prejudice to their right to claim compensation. If such affidavit is filed, the respondents shall consider the same and process the application in accordance with the statutory provisions. No costs. Consequently, connected miscellaneous petitions are closed."
6. Following the same, this Court is of the view that the same direction should be issued in this writ petition also. Accordingly, the writ petition is disposed of, directing the petitioner to submit an affidavit of undertaking not to put up any construction in the area earmarked for the purpose of road widening and keeping the area clear and also undertake to surrender the portion for implementation of road widening without prejudice to their right to claim compensation. If such affidavit is filed, the respondents shall consider the same and process the application in accordance with the statutory provisions. No costs. Consequently, connected miscellaneous petitions are closed.
To
1.The Commissioner of Town and Country Planning, Office of the Commissioner and Town and Country Planning, No.807, Anna Salai, Chennai 600 002.
2.The Deputy Director of Town and Country Planning, Southern Region, No.4, Hakeem Ajmal Khan Road, Chinnachakkikulam, Madurai.
3.The District Collector, Virudhunagar District, Virudhunagar.
.