Madras High Court
S.Parameshwari vs State Of Tamil Nadu on 12 December, 2024
Author: C.V.Karthikeyan
Bench: C.V.Karthikeyan
1
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 12.12.2024
CORAM
THE HONOURABLE MR. JUSTICE C.V.KARTHIKEYAN
W.P.No. 35777 of 2024
And
W.M.P.No. 38647 of 2024
1. S.Parameshwari
2. C.N.Srinivasan ... Petitioners/Petitioners
..Vs..
1. State of Tamil Nadu
Rep. By its Secretary
Municipal Administration and Water Supply Department
Chief Secretariat,
Chennai – 600009.
2. The District Collector
Collectorate,
Coimbatore.
3. The Director of Municipal Administration
No.75, Santhome High Road,
Raja Annamalaipuram
Chennai -600 028.
4. The Commissioner
Pollachi Municipality
Pollachi. ... Respondents/Respondents
https://www.mhc.tn.gov.in/judis
2
PRAYER: Petition under Article 226 of the Constitution of India,
praying for the issue of a Writ of Mandamus directing the fourth
respondent to forward the representation of the petitioner dated
22.06.2024 to the first and second respondent for granting approval
for exchange of land bearing T.S.No. 1706, vested with the fourth
respondent, for an equal extent of the land along the northern
boundary of plot A-13, bearing T.S.No. 1747 in LIG Nagar-II, Pollachi
Town, owned by the first petitioner, for the purpose of shifting of the
drainage channel and consequently, direct the first and second
respondent to pass necessary orders within a stipulated time frame.
***
For Petitioners :: Mr. L.P.Maurya
For Respondents :: Mr. T.Seenivasan
Special Government Pleader
ORDER
The Writ Petition has been filed in the nature of a Mandamus seeking a direction to the fourth respondent/ the Commissioner, Pollachi Municipality, Pollachi, to forward a representation given by the petitioner on 22.06.2024 to the first and second respondents, the Secretary, State of Tamil Nadu, Municipal Administration and Water Supply Department, Chennai and the District Collector, Collectorate, Coimbatore, for granting approval for exchange of land bearing T.S.No. 1706, vested with the fourth respondent, for an equal extent https://www.mhc.tn.gov.in/judis 3 of the land along the northern boundary of plot A-13, bearing T.S.No. 1747 in LIG Nagar-II, Pollachi Town, owned by the first petitioner, for the purpose of shifting of the drainage channel and consequently, direct the first and second respondent to pass orders on the representation of the petitioner within a time frame.
2. Both the petitioners are spouses. The first petitioner/wife had purchased a residential plot No. A-13 in L.I.G Nagar-II, Pollachi Town, comprised in T.S.No. 1747 measuring 616.22 sq.mts which is equivalent to 6633 sq.ft. The second petitioner/husband had purchased a residential plot bearing No.A-14 (Part) in L.I.G. Nagar-II, Pollachi Town, comprised in T.S.No. 1705 and measuring 305 sq.mts, equivalent to 3283.50 sq.ft.
3. The wife had purchased her property by sale deed dated 17.08.2009 and the husband had purchased his property by an earlier sale deed dated 10.09.2008. It was expected that they would have plots adjacent to each other. For the reasons best known, they had purchased two plots with the drainage line in between the two plots. They wanted to exchange that particular drainage in between the plots and put up a new drainage on the northern side of the plot of the husband. In effect, they have changed the course of the drainage https://www.mhc.tn.gov.in/judis 4 which naturally ran between the two plots and diversified the same and have now put in place a new drainage line on the northern side of the plot of the husband/second petitioner. Now, they seek to exchange the lands over which the drainage ran before with the land over which the drainage now runs.
4. They had earlier filed writ petition in W.P.No. 22573 of 2010 seeking the very same relief of exchange of land. They wanted to cut all the flow of drainage which naturally flowed between the two lands and divert it to the drainage on the northern side of the property of the second petitioner.
5. While examining whether there could be exchange of land in such circumstances, learned Single Judge of this Court by an order dated 08.09.2011 was of the opinion that it was the Government alone which could take a decision about the exchange of lands and it was not for the Commissioner of the Pollachi Municipality to give any opinion on the same and therefore, directed the petitioners to make a representation to the Commissioner, Pollachi Municipality, Pollachi, who was further directed to forward the same to the Government for appropriate consideration.
https://www.mhc.tn.gov.in/judis 5
6. In this connection, the learned Single Judge had examined Clause 1 of 26-A of the Standing Orders of the Board of Revenue (Land Revenue Settlement and Miscellaneous). Let me also extract the said clause which is found in paragraph No. 7 of the earlier order:-
“7. As per the Clause 26-A of the Standing Orders of the Board of Revenue, there is a provision for exchange of land at the disposal of the Government for private land, which reads as follows:-
1. When exchange may be made:- The grant of land, at the disposal of the Government for land owned privately may be made in circumstances such as the following:-
(i) Where a river, waterway, cart-track, etc., has changed its course through a private holding, the owner is willing to relinquish the land covered by the actual course in exchange for the portion registered in the accounts as river, etc.,
(ii) for straightening the course of a channel, pathway, etc., or where a channel, pathway, etc., splits up a holding into two and it can be diverted along the boundary of the https://www.mhc.tn.gov.in/judis 6 holding without any inconvenience to the public.
(iii) where it is desirable to prohibit any cultivation in the bed of an irrigation tank or river and the private owner is willing to relinquish the land situated in such bed in exchange for land at the disposal of the Government.
(iv) where small extents of private land not exceeding 25 cents in each case are required for public purposes such as minor improvements in irrigation sources or construction of chavadies, cattle pounds, walls or schools;
(v) where by an act of the government a private holding or any portion thereof has been rendered valueless or has been diminished in value and the private owner is willing to take land at the disposal of the Government in exchange for such holding or portion, as the case may be.
(vi) where a private owner is willing to provide land for the extension of village sites in exchange for land at the disposal of the Government;
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(vii) where a private owner is willing to relinquish small extents of land not exceeding 25 cents in each case for the consolidation of his holding;
2. Mode of exchange:- Such exchange should take the form of a relinquishment of the land privately owned and of an assignment subject to the usual conditions of the land at the disposal of the Government.
Sub Clause (ii) of the Clause 26-A of BSO speaks about straightening of the course of channel, pathway etc or where a channel, pathway, etc., splits up a holding into two and it can be diverted along the boundary of the holding without any inconvenience to the public.”
7. The learned counsel for the petitioner pointed out Clause 2 which provides for straightening the course of a channel or pathway or where a channel, pathway, etc., splits up a holding into two and it can be diverted along with the boundary of the holding without any inconvenience to the public.
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8. But one factor which has to be examined is that this particular drainage was already in existence when the two petitioners purchased their respective plots. They purchased the plots with the knowledge of the drainage running between the two plots. Therefore, conscious of that particular fact, they had taken a decision that in spite of the drainage running between the two plots, to purchase the plots. Having purchased the said plots, they now seek that the drainage which runs between the two plots should be closed and they must take control of that particular land and on the other hand, they would give up the land on the northern side of the plots of the second petitioner.
9. A written instructions had been forwarded on behalf of the fourth respondent that by this diversification of the drainage, there would be inconvenience caused to the public. It had been stated that free flow would be affected since the normal pathway is changed and diverted. This is a material fact which has to be taken into consideration. Merely because, a representation has been given would does not mean the Court should direct the authority to examine it. IT has to be determined whether the representation is capable of https://www.mhc.tn.gov.in/judis 9 being considered by the authorities.
10. In the instant case, the first authority, who is to examine the feasibility of such exchange of plots and the inconvenience caused to the public would the Commissioner, Pollachi Municipality. He had given an opinion that by such diversion of the drainage much hardship would be caused.
11. The learned counsel for the petitioner stated that the drainage now diverted on the northern side of the plots would not be of any inconvenience to the public. That is a personal opinion of the second petitioner herein.
12. It is the larger public interest which will have to be examined. Even if the Government is the authority, who has to decide exchange of lands, the Government can act only on the remarks obtained from the Officials who are at the field, in this case, the Commissioner, Pollachi Municipality.
13. The opinion of the Commissioner, Pollachi Municipality, will have to be given its due weightege. It is not as if the Commissioner, Pollachi Municipality, harbours any ill-will against the petitioners. He https://www.mhc.tn.gov.in/judis 10 must keep in mind the welfare of the people and ensure that there is free flow of the drainage even at times of inclement weather. If there is a diversion of the drainage, naturally, there is a possibility of blockage happening and if there is blockage, then there would be further possibility of water stagnation and drainage water if stagnated would cause inconvenience to everybody.
14. The opinion of the learned Single Judge that it is the Government which will have to examine exchange of land is an opinion which cannot be denied or disputed. Merely because, it is the Government which has to decide does not imply that the other officials should not forward their remarks. In this case, the Commissioner has given very clear cut remarks that the exchange of land would cause much inconvenience.
15. Therefore, I hold that the petitioners are indulging in an exercise of futility and seeking consideration of representation after representation. They must rest with the fact that they have purchased two plots a fence between them in the form of a drainage and be at peace with each other.
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16. The Writ Petition stands dismissed. Consequently, connected Miscellaneous Petition stands closed. No order as to costs.
12.12.2024 vsg Index: Yes/No Internet: Yes/No Speaking / Non Speaking Order To
1. The Secretary State of Tamil Nadu Municipal Administration and Water Supply Department Chief Secretariat, Chennai – 600009.
2. The District Collector Collectorate, Coimbatore.
3. The Director of Municipal Administration No.75, Santhome High Road, Raja Annamalaipuram Chennai -600 028.
4. The Commissioner Pollachi Municipality Pollachi.
https://www.mhc.tn.gov.in/judis 12 C.V.KARTHIKEYAN, J., vsg W.P.No. 35777 of 2024 And W.M.P.No. 38647 of 2024 12.12.2024 https://www.mhc.tn.gov.in/judis