BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 12/10/2009 CORAM THE HONOURABLE MRS.JUSTICE CHITRA VENKATARAMAN AND THE HONOURABLE MR.JUSTICE M.DURAISWAMY Writ Petition (MD) Nos.9668 to 9681 of 2009 Writ Petition (MD) Nos.10150 and 10151 of 2009 and M.P.(MD)No.1 of 2009 in WP (MD) Nos.9668 to 9681, 10150 and 10151 of 2009 and Contempt Petition (MD)No.174 of 2008 and M.P.(MD)No.1 of 2009 in Rev.Aplw(MD)SR Nos.40732 & 40734 of 2009 W.P.(MD)No.9668/2009: Meenal, W/o.Sethuraman ... Petitioner vs. 1.The Board of Council, Karaikudi Municipality, Karaikudi, Sivagangai District. 2.The Municipal Commissioner, Karaikudi Municipality, Karaikudi, Sivagangai District. 3.L.Gowri, W/o.V.Lakshmanan ... Respondents in WP No.9668/2009
(3rd respondent impleaded as per the order dated
30.09.2009 in WP Nos.9668 to 9681 of 2009)
PRAYER
Writ petition under Article 226 of the Constitution of India praying for
issuance of a writ of certiorari calling for the records relating to the
impugned Notice in U.A.C.29/07/F2, dated 18.09.2009, issued by the 2nd
respondent and quashing the same.
WP(MD)No.9669/2009:
S.Subramanian .. Petitioner Vs 1.The Board of Council, Karaikudi Municipality, Karaikudi, Sivagangai District. 2.The Municipal Commissioner, Karaikudi Municipality, Karaikudi, Sivagangai District. 3. L.Gowri ..Respondents (R3 impleaded as per the order dated 30/09/09 in WP.9668 to 9681/2009)
Writ Petition filed under Article 226 of the Constitution of India praying
for issuance of a Writ of Certiorari calling for the records relating to the
impugned Notice in Na.Ka.No.F458/07 dated 18.9.09, issued by the 2nd respondent
and quashing the same.
WP(MD)No.9670/2009:
V.Subramanian .. Petitioner Vs 1.The Board of Council, Karaikudi Municipality, Karaikudi, Sivagangai District. 2.The Municipal Commissioner, Karaikudi Municipality, Karaikudi, Sivagangai District. 3. L.Gowri ..Respondents (R3 impleaded as per the order dated 30/09/09 in WP.9668 to 9681/2009)
Writ Petition filed under Article 226 of the Constitution of India praying
for issuance of a Writ of Certiorari calling for the records relating to the
impugned Notice in U.A.C.37/07/F-2 dated 18.9.09, issued by the 2nd respondent
and quashing the same.
WP(MD)No.9671/2009:
Fathima Mary .. Petitioner Vs 1.The Board of Council, Karaikudi Municipality, Karaikudi, Sivagangai District. 2.The Municipal Commissioner, Karaikudi Municipality, Karaikudi, Sivagangai District. 3. L.Gowri ..Respondents (R3 impleaded as per the order dated 30/09/09 in WP.9668 to 9681/2009)
Writ Petition filed under Article 226 of the Constitution of India praying
for issuance of a Writ of Certiorari calling for the records relating to the
impugned Notice in U.A.C.24/07/F2 dated 18.9.09, issued by the 2nd respondent
and quashing the same.
WP(MD)No.9672/2009:
Saratha .. Petitioner Vs 1.The Board of Council, Karaikudi Municipality, Karaikudi, Sivagangai District. 2.The Municipal Commissioner, Karaikudi Municipality, Karaikudi, Sivagangai District. 3. L.Gowri ..Respondents (R3 impleaded as per the order dated 30/09/09 in WP.9668 to 9681/2009)
Writ Petition filed under Article 226 of the Constitution of India praying
for issuance of a Writ of Certiorari calling for the records relating to the
impugned Notice in U.A.C. /F2 dated 18.9.09, issued by the 2nd respondent and
quashing the same.
WP(MD)No.9673/2009:
S.P.Dhakshinamoorthy .. Petitioner Vs 1.The Board of Council, Karaikudi Municipality, Karaikudi, Sivagangai District. 2.The Municipal Commissioner, Karaikudi Municipality, Karaikudi, Sivagangai District. 3. L.Gowri ..Respondents (R3 impleaded as per the order dated 30/09/09 in WP.9668 to 9681/2009)
Writ Petition filed under Article 226 of the Constitution of India praying
for issuance of a Writ of Certiorari calling for the records relating to the
impugned Notice in U.A.C.26/07/F2 dated 18.9.09, issued by the 2nd respondent
and quashing the same.
WP(MD)No.9674/2009:
Sornavalli .. Petitioner Vs 1.The Board of Council, Karaikudi Municipality, Karaikudi, Sivagangai District. 2.The Municipal Commissioner, Karaikudi Municipality, Karaikudi, Sivagangai District. 3.L.Gowri ..Respondents (R3 impleaded as per the order dated 30/09/09 in WP.9668 to 9681/2009)
Writ Petition filed under Article 226 of the Constitution of India praying
for issuance of a Writ of Certiorari calling for the records relating to the
impugned Notice in U.A.C.30/07/F2 dated 18.9.09, issued by the 2nd respondent
and quashing the same.
WP(MD)No.9675/2009:
Valli .. Petitioner Vs 1.The Board of Council, Karaikudi Municipality, Karaikudi, Sivagangai District. 2.The Municipal Commissioner, Karaikudi Municipality, Karaikudi, Sivagangai District. 3.L.Gowri ..Respondents (R3 impleaded as per the order dated 30/09/09 in WP.9668 to 9681/2009)
Writ Petition filed under Article 226 of the Constitution of India praying
for issuance of a Writ of Certiorari calling for the records relating to the
impugned Notice in U.A.C.33/07/F2 dated 18.9.09, issued by the 2nd respondent
and quashing the same.
WP(MD)No.9676/2009:
M.Ramu .. Petitioner Vs 1.The Board of Council, Karaikudi Municipality, Karaikudi, Sivagangai District. 2.The Municipal Commissioner, Karaikudi Municipality, Karaikudi, Sivagangai District. 3.L.Gowri ..Respondents (R3 impleaded as per the order dated 30/09/09 in WP.9668 to 9681/2009)
Writ Petition filed under Article 226 of the Constitution of India praying
for issuance of a Writ of Certiorari calling for the records relating to the
impugned Notice in U.A.C.28/07/F2 dated 18.9.09, issued by the 2nd respondent
and quashing the same.
WP(MD)No.9677/2009:
Vasantha .. Petitioner Vs 1.The Board of Council, Karaikudi Municipality, Karaikudi, Sivagangai District. 2.The Municipal Commissioner, Karaikudi Municipality, Karaikudi, Sivagangai District. 3.L.Gowri ..Respondents (R3 impleaded as per the order dated 30/09/09 in WP.9668 to 9681/2009)
Writ Petition filed under Article 226 of the Constitution of India praying
for issuance of a Writ of Certiorari calling for the records relating to the
impugned Notice in U.A.C.31/07/F2 dated 18.9.09, issued by the 2nd respondent
and quashing the same.
WP(MD)No.9678/2009:
P.Thangaraj .. Petitioner Vs 1.The Board of Council, Karaikudi Municipality, Karaikudi, Sivagangai District. 2.The Municipal Commissioner, Karaikudi Municipality, Karaikudi, Sivagangai District. 3.L.Gowri ..Respondents (R3 impleaded as per the order dated 30/09/09 in WP.9668 to 9681/2009)
Writ Petition filed under Article 226 of the Constitution of India praying
for issuance of a Writ of Certiorari calling for the records relating to the
impugned Notice in U.A.C.23/07/F2 dated 18.9.09, issued by the 2nd respondent
and quashing the same.
WP(MD)No.9679/2009:
Tamilarasi .. Petitioner Vs 1.The Board of Council, Karaikudi Municipality, Karaikudi, Sivagangai District. 2.The Municipal Commissioner, Karaikudi Municipality, Karaikudi, Sivagangai District. 3.L.Gowri ..Respondents (R3 impleaded as per the order dated 30/09/09 in WP.9668 to 9681/2009)
Writ Petition filed under Article 226 of the Constitution of India praying
for issuance of a Writ of Certiorari calling for the records relating to the
impugned Notice in U.A.C.58/07/F2 dated 18.9.09, issued by the 2nd respondent
and quashing the same.
WP(MD)No.9680/2009:
Muthulakshmi .. Petitioner Vs 1.The Board of Council, Karaikudi Municipality, Karaikudi, Sivagangai District. 2.The Municipal Commissioner, Karaikudi Municipality, Karaikudi, Sivagangai District. 3.L.Gowri ..Respondents (R3 impleaded as per the order dated 30/09/09 in WP.9668 to 9681/2009)
Writ Petition filed under Article 226 of the Constitution of India praying
for issuance of a Writ of Certiorari calling for the records relating to the
impugned Notice in U.A.C.27/07/F2 dated 18.9.09, issued by the 2nd respondent
and quashing the same.
WP(MD)No.9681/2009:
Muthumari .. Petitioner Vs 1.The Board of Council, Karaikudi Municipality, Karaikudi, Sivagangai District. 2.The Municipal Commissioner, Karaikudi Municipality, Karaikudi, Sivagangai District. 3. L.Gowri ..Respondents (R3 impleaded as per the order dated 30/09/09 in WP.9668 to 9681/2009)
Writ Petition filed under Article 226 of the Constitution of India praying
for issuance of a Writ of Certiorari calling for the records relating to the
impugned Notice in U.A.C.25/07/F2 dated 18.9.09, issued by the 2nd respondent
and quashing the same.
WP(MD)No.10150/2009:
S.Indira .. Petitioner Vs 1.The Board of Council, Karaikudi Municipality, Karaikudi, Sivagangai District. 2.The Municipal Commissioner, Karaikudi Municipality, Karaikudi, Sivagangai District. ..Respondents
Writ Petition filed under Article 226 of the Constitution of India praying
for issuance of a Writ of Certiorari calling for the records relating to the
impugned Notice in Na.Ka.No.F2/57/07 dated 23.9.09, issued by the 2nd respondent
and quashing the same.
WP(MD)No.10151/2009:
N.Tamilrasan ..Petitioner Vs 1.The Board of Council, Karaikudi Municipality, Karaikudi, Sivagangai District. 2.The Municipal Commissioner, Karaikudi Municipality, Karaikudi, Sivagangai District. ..Respondents
Writ Petition filed under Article 226 of the Constitution of India praying for
issuance of a Writ of Certiorari calling for the records relating to the
impugned Notice in U.A.C.78/09/F2 dated 23.9.09, issued by the 2nd respondent
and quashing the same.
Contempt Petition 174/2008 in WP.4563/06:
L.Gowri .. Petitioner/Petitioner Vs Mr.S.Kalaiselvan, The Commissioner, Karaikudi Municipality, Karaikudi. ..Respondent/5th Respondents
Contempt Petition filed under Section 11 of the contempt of Courts Act
1971 to punish the respondent for the contempt for disobeying the order passed
by this Hon’ble Court in WP.4563/06 petition filed under Article 226 of the
Constitution of India, praying for the issue of a Writ of Mandamus, to direct
the respondents 1 to 3 and 6 to implement the order of the fourth respondent in
R.C.No.6983/0223/B-1 dated 15/3/06 and remove the encroachments in
Soodamanipuram layout formed by the second respondent society and obtain final
approval of the layout from the fifth respondent Municipality.
MP.1/09 in Review Application SR.40734/09:
S.P.Dhakshinamoorthy .. Petitioner/Petitioner
Vs
1.Kamala
2.The Registrar of Co-operative
Societies (Housing)
22, 4th Main Road,
Gandhi Nagar, Adyar, Chennai – 20.
3.The Deputy Registrar of Co-operative
Societies (Housing),
Virudhunagar.
4. The Special Officer,
A-1321, Karaikudi Co-operative
House Building Society,
Karaikudi.
5.The District Collector,
Sivagangai District,
Sivagangai.
6.The Superintendent of Police,
Sivagangai District, Sivagangai.
7. The Commissioner,
Karaikudi Municipality,
Karaikudi.
8. The Commissioner,
Municipal Administration,
Chepauk, Chennai ..Respondents/Respondents
To grant leave to the petitioner herein to file the above Review
Application against the order dated 19.06.07 in WP.8020/2006 on the file of this
Hon’ble Court.
MP.1/09 in Review Application SR.40732/09:
S.P.Dhakshinamoorthy .. Petitioner/Petitioner
Vs
1.L.Gowri
2.The District Collector,
Sivagangai District,
Sivagangai.
3. The Special Officer,
A-1321, Karaikudi Co-operative
House Building Society,
Karaikudi.
4.The Superintendent of Police,
Sivagangai District, Sivagangai.
5.The Registrar of Co-operative
Societies (Housing)
22, 4th Main Road,Gandhi Nagar,
Adyar, Chennai – 20.
6. The Commissioner,
Karaikudi Municipality,
Karaikudi.
7.The Deputy Registrar of Co-operative
Societies (Housing),Virudhunagar.
8.K.R.Lakshmi Narayanan .. Respondents/Respondents
To grant leave to the petitioner herein to file the above Review
Application against the order dated 19.06.07 in WP(MD)4563/2006 on the file of
this Hon’ble Court.
!For Petitioners … Mr.G.R.Swamianthan for
in all the WPs M/s.Right Law Associates.
& MP 1/2009 in Review Petition SR.No.40732/09 & 40734/09 For Petitioner in ... Mr.G.Prabhu Rajadurai Cont.Petition No.174/08 and For 3rd Respondent in all the WPs except WP.Nos.10150 & 10151 of 2009 ^For Respondents-1 and 2 ... M/s.S.Srimathi in all the WPs & in Contempt Petn. :COMMON ORDER
(Order of the Court was made by CHITRA VENKATARAMAN,J.)
The petitioners in W.P.(MD)Nos.9668 to 9681, 10150 and 10151 of 2009 have
preferred these independent writ petitions challenging the Final Notices issued
under Sections 338, 339 read with Section 216(3) of the Tamil Nadu District
Municipalities Act, 1920 (herein after referred to as “the Act”) issued by the
Municipal Commissioner, Karaikudi Municipality, Sivagangai District. The said
Notices are issued for removal of unauthorised construction in terms of the
notices already issued under Sections 216(1),(2) & (3) of the Act. The 3rd
respondent in WP(MD)Nos.9668 to 9681 of 2009 is impleaded as a party as per the
orders of this Court, dated 30.09.2009, made in W.P.(MD)Nos.9668 to 9681 of
2009.
2. Contempt Petition (MD)No.174 of 2008 is to punish the Respondent for
disobeying the order passed by this Court in W.P.(MD)No.4563 of 2006, dated
19.06.2007. M.P.(MD)No.1 of 2009 in Rev.AplW.(MD)SR Nos.40732 and 40734 of 2009
are filed seeking leave of this Court to file Review Applications to review the
order of this Court dated 19.06.2007 made in W.P.(MD)Nos.4563 & 8020 of 2006.
3. Since the issue involved in these matters is one and the same, a common
order is hereby passed. For the purpose of easy reference, the facts in
W.P.(MD)No.9668 of 2009 is given below. It may be noted herein immediately that
except for the different petitioners, the contentions are one and the same.
4. The petitioner in W.P.(MD)No.9668 of 2009 one Meenal claims herself as
the absolute owner of the property comprised in T.S.No.1339/P, Pandikoil
Backside in Soodamanipuram, Karaikudi. The said petitioner has put up a
construction therein. The petitioner claims that this property originally
belonged to Arulmighu Suyamparakeswarar Temple Devasthanam at Illuppakkudi. The
present notice had been issued to the petitioner to remove the unauthorised
construction on or before 29.09.2009, failing which the same would be demolished
by the authorities. The petitioner placed her grievances that the said notice
had emanated consequent on the order of this Court, dated 19.06.2007, made in
W.P.(MD) 4563/2006 preferred by the third respondent herein. The petitioner
states that the proceedings issued are in violation of the principles of natural
justice as no sufficient opportunity was given to the petitioner for personal
hearing of the grievance of the petitioner. It is also stated that the
petitioner’s husband filed W.P.(MD)No.7982 of2007 challenging the notice, dated
15.10.2008, issued by the 2nd respondent under Section 216(3) and 205(3) of the
Act and the said writ petition was disposed of by this Court under Order dated
23.12.2008 directing the 2nd respondent to initiate proceedings by complying all
the due process of law. It is also stated that the petitioner has filed a civil
suit in this regard. Having regard to the fact that the petitioner in this
petition, namely Meenal and other petitioners were not parties to the writ
proceedings in W.P.(MD)No.4563/2006 and 8020 of 2006 by the third respondent and
by L.Gowri, the petitioner has filed a petition seeking permission of this Court
to file applications to review the order dated 19.6.2009 in W.P.(MD) Nos.4563 of
2006 and 8020 of 2006. The third respondent has filed a counter affidavit,
wherein it is contended that Soodamanipuram Layout was originally prepared by a
land owner, namely, Illuppukudi Devasthanam, which obtained the approval of the
Director of Town Planning, Madras as early 01.09.1980. The said Devasthanam
executed sale of the property within the layout to Karaikudi Cooperative House
Building Society as early as 4.3.1981 and 6.3.1981. The said society allotted
the plots to its members. The third respondent, by sale deed dated 21.5.1992,
was allotted plot bearing No.HIC. This respondent contends that although the
property was originally reserved for industrial purpose, yet, on account of the
objections raised for having an industrial area inside the residential locality,
the Registrar moved the Town Planning Authority for modification of the user
into housing. Accordingly, by proceedings dated 7.8.1995, the user was modified
into housing. The Municipality was also informed about the same. It is also
stated that under the sale deed dated 15.7.1993, one Kamala was also conveyed a
plot by the Society. The first respondent further stated that while open space
was encroached upon by certain individuals, this respondent took steps against
the encroachment. The Registrar of Cooperative Societies addressed the
Collector, Sivaganga and the Zonal Commissioner to take remedial action in this
regard. Since there was no action, the third respondent and the said Kamala
filed writ petitions in W.P.(MD) Nos.4563 of 2006 and 8020 of 2006 respectively
before this Court. Under order dated 19.6.2007, the writ petitions were heard
together and disposed of with certain directions. Commenting that the
petitioners had not produced any document to establish their title over the
property encroached upon, the first respondent further pointed out to the writ
petition filed earlier by the petitioners, challenging the Municipality viz.,
W.P.(MD) No.9300 of 2007, wherein, the present petitioners took the stand that
they were tenants of the Illuppukudi Devasthanam, paying rent to the
Devasthanam. There was no document to show that the petitioners were the lessees
of Illuppukudi Devasthanam. This respondent comments that till this date, the
petitioners had not produced any document to substantiate the character of their
stay. There is no planning permission obtained to construct the building. In
the background of the same, this respondent contends that no indulgence be shown
to the petitioners.
5. Learned counsel appearing for the writ petitioners submitted that the
impugned proceedings in the present writ petitions are the offshoot of the order
passed by this Court in W.P.(MD)Nos.4563 and 8020 of 2006, dated 19.06.2007.
Since Section 216(3) contemplates a discretion to be exercised by the
authorities, in accordance with law and now the impugned notices have been
issued consequent upon the order of this Court dated 19.06.2007 made in
W.P.(MD)Nos.4563 and 8020 of 2006, there is no exercise of discretion to
consider the claims of the petitioners, in accordance with law and consequently
the discretion itself is scuttled and hence it is in violation of the provisions
of the Act.
6.Learned counsel appearing for the petitioners submitted that in terms of
the decisions in (2006) 8 SCC 590 – Muni Suvrat-Swami Jain S.M..Sangh vs. Arun
Nathuram Gaikwad and others; and AIR 1956 SC 110 – Calcutta Corpn. v.
Mulchand, the term “may” as used in Section 216(3) of the Act cannot be read as
“shall” to take away the discretion of the Municipality while passing an order
under Section 216(3). Therefore, the action taken based on the decision of this
Court dated 19.06.2007 is contrary to the law declared and hence the impugned
notices have to be struck down.
7. Learned counsel for the petitioners further pointed out that even
assuming for a moment that the land in question belongs to the intervenor, the
3rd respondent herein, the proper course that the 3rd respondent may seek is not
to have the eviction done through the 2nd respondent. Considering the fact that
the allotment of the land to the 3rd respondent is against the very scheme of
the Co-operative Society and the 3rd respondent is not having any valid title,
the 3rd respondent has no say in this matter and hence the stand of the 3rd
respondent is totally misconceived. Learned counsel further pointed out that
assuming for a moment that the construction made by the petitioners is an
unauthorised one, all that could be ordered by the Municipality is a mere
demolition and by such demolition, the petitioners cannot be evicted from the
land and the action contemplated by the 2nd respondent pursuant to the orders of
this Court would be directly in conflict with the public interest and hence the
orders of demolition cannot have any public cause. He further stated that no
specific statement as to the allegation of encroachment has been made by the 2nd
respondent in the impugned notice. In these circumstances, when the 3rd
respondent has no title, the question of eviction of the petitioners does not
arise.
8. In sum and substance, learned counsel for the petitioners contends that
the impugned proceedings is not made in exercise of the discretion that is
reserved under the Act and hence the orders passed pursuant to the orders of
this Court has to be struck down. With reference to the contention taken as
regards the review of the Order passed on 19.06.2007, learned counsel for the
petitioners pointed out that as the order is in conflict with the rights of the
petitioners, the same should have been made only after hearing those parties
who are likely to be affected and the petitioners being the affected parties not
been heard while passing the order on 19.06.2007, the rights of the petitioners
are prejudiced, the said order requires a review.
9. Per contra, the learned counsel for the intervenor, the 3rd respondent,
has submitted that the order passed on 19.06.2007 in W.P.(MD)Nos. 8020 and 4563
of 2006 has to be read in terms of the decision of the Full Bench of this Court
reported in 2005(2) CTC 741 – Ramaraju,T v. The State of Tamil Nadu, wherein
all that had been directed by this Court was that the respondents are to
initiate action in accordance with law. Referring to the conflicting stand
taken by the petitioners as to their occupation as one as lessee under the
Temple in the earlier writ proceedings and later on in the present writ petition
as an absolute owner of the premises, learned counsel for the 3rd respondent
pointed out that the petitioners have not come with clean hands. The land in
question, admittedly, is one allotted by the Cooperative Society to the 3rd
respondent, which forms part of the approved layout. As the land of the 3rd
respondent, over which she has a valid title, had been encroached upon by the
petitioners, rightly the Municipality acted in terms of the orders of this Court
to remove the unauthorised constructions and the encroachment by directing the
petitioners to pull-down the unauthorised construction. Hence no exception
could be taken to the conduct of the Municipality. He further pointed out that
even assuming that the occupation of the petitioners is a valid one, either as a
lessee or a licensee, in terms of the Tamil Nadu District Municipalities
Building Rules, 1972, particularly Rule 3(3) there can be no application for
construction of a building without the consent of the owner. Admittedly, no
application had been made by the petitioners enclosing the consent of the owner
and even for that purpose taking the temple as the owner. Consequently being an
approved lay out, there can be no change in the lay out scheme unless and until
the Town Planning authorities are approached for exercise of power in terms of
Sections 49 and 56 of the Tamil Nadu Town and Country Planning Act, 1971. In
those circumstances, a large stretch of land which was purchased by the 3rd
respondent cannot be allowed to be encroached upon by the petitioners even to
seek protection for putting up a construction in terms of the Building Rules or
for that matter the Municipality to grant the same in terms of Section 197.
Referring to the decision of the Supreme Court in 2006 (5) SCC 282 – Seema
Arshad Zaheer v. Municipal Corpn. of Greater Mumbai that in matters of
unauthorised construction even for discretion to be exercised in favour of the
petitioners in terms of Section 216(3) of the Act, there must be prima facie
proof of the legal rights. When there are hardly any materials which the
petitioners can lay hands on to substantiate their rights to be heard, given the
fact that the land in question is a private land and not a poromboke land, the
petitioners have no locus standi to maintain these writ petitions. Therefore,
learned counsel for the 3rd respondent pointed out that the petitioners have
been making inconsistent stand throughout the proceedings before this Court and
elsewhere too and consequently, there can be no prejudice caused to the
petitioners and no indulgence be shown to protect the interest of the
petitioners herein.
10. As to the argument of the petitioners that all that could be done by
the Municipality is to pull-down the structure, learned counsel for the 3rd
respondent has fairly admitted that the notices that are now issued by the
Municipality is only for the demolition of the unuthorised structures and that
the present respondent has to establish her rights only through the common law
remedy. In these circumstances, he prays for dismissal of all the writ
petitions.
11. Contending that the petitioners have no locus standi to question the
allotment of large extent of land in favour of the 3rd respondent, learned
counsel for the 3rd respondent submitted that the petitioners are not members of
the Co-operative Society even to question the allotment of huge land which is
absolutely the discretion of the society. Hence, no exception could be taken to
the conduct of the Society in granting the land to the 3rd respondent.
12. As regards the petitions filed by one of the writ petitioners seeking
leave of this Court to file review applications to review the order of this
Court dated 19.06.2007 made in W.P.(MD)Nos.8020 and 4563 of 2007, learned
counsel for the 3rd respondent submitted that after the decision of the Full
Bench of this Court in Ramaraju’s case cited supra, the direction given by this
Court on 19.06.2007 has to be read as one given to the Municipality to act in
terms of the provisions of the District Municipalities Act. He further pointed
out that the order passed by the earlier Division Bench dated 19.06.2007 merely
directed that action be taken in accordance with law, which does not mean that
the petitioners rights are in any manner prejudiced and consequently prayed for
dismissal of the Review Petitions as well as the writ petitions.
13.Learned counsel appearing for the Municipal Commissioner, Karaikudi
Municipality, submitted that the Commissioner was taking steps to have the
unauthorised constructions removed but, however, due to various subsequent
proceedings there is delay in implementing the orders of this Court and now the
Municipality has issued final notices impugned in the present writ petitions to
remove the unauthorised constructions and there is no wilful default on the part
of the Municipal Commissioner in implementing the orders of this Court.
14. Heard the learned counsel for the parties.
15. A reading of the common order of this Court, dated 19.06.2007 shows
that the same was passed in two writ petitions, namely W.P.(MD)Nos.8020 and
4563 of 2006 preferred by one Kamala and L.Gowri (third respondent in the
present writ petition), respectively. In W.P.(MD)No.4563 of 2006, the 3rd
respondent in these writ proceedings, namely L.Gowri, had sought for a writ of
mandamus to direct the respondents 1 to 3 and 6 therein, namely (i) The District
Collector, Sivagangai District; (ii)The Special Officer, A.1321, Karaikudi Co-
operative House Building Society, Karaikudi; (iii)The Superintendent of Police,
Sivagangai District; and (iv) The Deputy Registrar of Co-operative Societies
(Housing), Virudhunagar, to implement the order, dated 15.03.2006, of the 4th
respondent therein, namely The Registrar of Co-operative Societies (Housing)
Chennai, and to remove the encroachments in Soodamanipuram Layout formed by the
2nd respondent society and obtain final approval of the layout from the 5th
respondent Municipality.
16. After hearing the parties therein, this Court pointed out that in the
counter affidavit filed by the Municipality it had not denied its obligation to
clear the encroachments made in the public places. This Court further pointed
out that spaces earmarked for public purposes, viz., roads, streets and open
spaces were transferred to the local authority viz., Karaikudi Municipality by
way of gift deed dated 13.6.2007. This Court also pointed out the suit by the
Municipality in O.S.No.149/2004 on the file of District Munsif Court, Karaikudi,
seeking a mandatory injunction against encroachments. Referring to the
cotnention of the third respondent herein as writ petitioner in W.P.(MD) No.4563
of 2006 that one K.R.Lakshmi Narayanan has put up unauthorised construction in
her land, this Court disposed of the writ petitions and passed the following
directions:
“(i) The learned Additional District Munsif, Karaikudi is hereby directed
to dispose of O.S.No.149 of 2004 pending on its file within a period of four
months from the date of receipt of a copy of this order.
(ii) The Commissioner, Karaikudi Municipality, Karaikudi is directed to
proceed with the eviction of the encroachers under the District Municipalities
Act. If the encroachments are found to be in the road margin or in the streets,
in case the encroachments are found in other places, proceedings may be
initiated under the Public Premises Act;
(iii) In respect of the unauthorised constructions stated to be alleged to
have been put up by the seventh respondent in W.P.No.4563 of 2006 in Plot
No.HIG TS No.1339P, the Commissioner Karaikudi Municipality, Karaikudi is
directed to proceed under the District Municipalities Act for removal of the
unauthorised development. This exercise must be completed within a period of
four months from the date of receipt of a notice.”
17. Consequent thereon, on 28.08.2007, notices were issued to the writ
petitioners calling upon them to remove the unauthorised construction within
three days from the date of receipt of the said Notice. In W.P.(MD)Nos.9300 to
9305 etc. batch of 2007, the present writ petitioners and certain other persons,
who were alleged to have encroached the land in question, sought for a writ of
certiorari to quash the Notices dated 28.08.2007 issued by the respondent
therein, namely Municipal Commissioner, Karaikudi Municipality. By the common
order dated 25.02.2008, the Division Bench of this Court held that in view of
the order passed by this Court in the earlier round of writ proceedings in W.P.
No.10557 of 2005 dated 7.12.2005 directing the writ petitioners to approach the
civil court to establish their title and for interim orders and considering the
Municipality filing a suit and an interim injunction granted in favour of the
alleged encroachers, the notices of demolition was quashed, subject to the
result of the suits in O.S.No.57 of 2005 an O.S.No.149/2004 on the file of
District Munsif Court, Karaikudi. This Court further pointed out that the
petitioners in W.P.No.10557 of 2005 were the petitioners in W.P.No.7611 of 2007.
This Court held that there can be no construction without any approved plan
issued by the authorities concerned and hence the Municipality was at liberty to
proceed against such unauthorised construction in accordance with law. The said
order was made particularly with reference to those petitioners in
W.P.(MD)No.9300 to 9305, 7898 and 7980 to 7985 of 2007, who are petitioners in
the present writ petitions in W.P.(MD)Nos.9668/2009, 9670/2009, 9674/2009,
9680/2009 and, 9677/2009. This Court further pointed out that the notices
issued to the petitioners could be proceeded with and the petitioners were also
permitted to file their objections within a period of two weeks from the date of
the order.
18. Once again in W.P.(MD)No.78/2009, the present writ petitioners, apart
from other petitioners, approached this Court seeking a writ of Mandamus to
direct the Board of Council, Kariakudi Municipality, the 1st respondent herein,
to consider and disposal of their appeals filed against the notices of
demolition dated 14.11.2008. By order dated 07.01.2009, this Court directed
that the petitioners be given an opportunity to proceed with their appeal under
Section 322 of the Act and the 1st respondent namely, the Board of Council,
Karaikudi Municipality, Sivagangai District, was directed to dispose of the
appeals within a period of one month from the date of receipt of the order
therein. The said appeals were however dismissed by the Council. In view of
the dismissal of the appeal, writ petitions filed before this Court in
W.P.(MD)Nos.3071, 5428, 10115, 10114 and 11354 of 2008 were disposed of by this
Court by order dated 05.08.2009 directing the Municipality to take appropriate
action under the provisions of the Act for the removal of the encroachments on
the land owned by the Housing Society and for the demolition of the buildings
which are constructed without approprite planning permission and that before
doing so, the Municipality should follow the procedure prescribed by law. This
Court further pointed out that the law applicable to the demolition shall be
applied by the Municipality uniformly to all violators without any
discrimination. This Court also dismissed W.P.No.3011 of 2008 filed by one
S.R.Sorna Kaleeswaran alleging irregularities in the allotment of house sites by
the Cooperative Building Society.
19. In the context of these facts, the contention of the 3rd respondent as
regards to inconsistent stand of the petitioners merits to be taken note of in
the writ proceedings now under the consideration, particularly
W.P.(MD)No.9668/2009. The petitioners claim themselves to be in occupation and
enjoyment of property for more than a decade by constructing pucca houses. They
have also referred to the property as originally belonging to Arulmighu
Suyamparakeswarar Temple Devasthanam, Illupukkudi. Learned counsel for the 3rd
respondent rightly pointed out that while in the proceedings in the earlier
round the writ petitioners have pointed out that they were the lessees of the
said Temple, in the suit, all of a sudden, the present writ petitioners brought
in a change to their stand that they are the occupiers of the land, ownership
of which is not on anybody, including that of the temple. Learned counsel
appearing for the petitioners is fair enough to admit that the land in question
is not a poromboke land; nor do they say that they are the lessees of the
temple. Learned counsel for the petitioners would only point out that the
character of their stay as a lessee or licensee or not is not of relevance for
the purpose of considering the contention of the petitioners. We record this
submission as an admission of the fact that the petitioners are not the owners
of the land in which they had put up their construction. As rightly pointed out
by the learned counsel for the third respondent, the inconsistencies in the
stand of the petitioners as to their holding as evidenced in the various writ
proceedings and the suit proceedings merely highlight the anxiety of the
petitioner to somehow resist an order from by the statutory authority in lawful
exercise of their power. Rightly, learned counsel for the 3rd respondent brought
before us the necessary documents to substantiate his claim as a purchaser from
the Society the 3rd respondent is the lawful owner of the property and hence no
exception could be taken to the title of the third respondent.
20. Leaving aside the claim of the 3rd respondent on this aspect as fairly
admitted by the learned counsel for the 3rd respondent that the present notices
are for demolition of the unauthorised construction alone that issues as regards
the right and title that the 3rd respondent claims, certainly is a matter for
the civil Court to go into, the only question that falls for consideration of
this Court in these proceedings is as to whether the action undertaken by the
2nd respondent Municipality is one in accordance with the provisions of the Act.
21.The petitioners are not disputing the authority of the 2nd respondent
to issue the notices under Section 216(3) of the Act. But, all that they have
stated is that notices do not have the necessary support of law considering the
fact that the notices in question are issued pursuant to the earlier order of
this Court.
22. We do not agree with the said stand of the learned counsel for the
petitioners. A perusal of the notices under challenge shows that they are final
notices issued under Sections 338, 339 read with Section 216(3) of the Act. It
is no doubt true that the impugned notices refer to the order of this Court
dated 19.06.2007 made in W.P.(MD)No.4563 of 2006. A perusal of the order of
this court dated 19.06.2007, leaves no manner of doubt that all that it had held
was that the unauthorised constructions have to be removed by the Municipality
in accordance with the provisions of the Act, if the encroachments were found to
be in the road margin or in the street or found in other places, proceedings
should be initiated under the Public Premises Act. Considering the unauthorised
construction put up by the 7th respondent in W.P(MD)No.4563 of 2006, namely one
Lakshmi Narayanan, this Court directed the Karaikudi Municipality to proceed
under the District Municipalities Act for the removal of unauthorised
development.
23.The sum and substance of the order passed by this Court on 19.6.2007 is
that the Municipality was directed to take action in accordance with the
provisions of the District Municipalities Act to clear unauthorised
constructions made in certain places. The grievance of the petitioner in
W.P.(MD)No.4563 of 2006, the third respondent in the present writ petitions was
that unauthorised constructions were made without obtaining planning permission
and they should be removed after observing the provisions of District
Municipalities Act. A reading of the said order of this Court refers to general
character of unauthorised constructions and there is no particular direction as
to the writ petitioners herein to seek a review of the said order on the ground
that pursuant to the said order alone the present proceedings are issued and
hence the rights of the petitioners are prejudiced and that there is no
discretion exercised by the authorities at all to consider the objection of the
petitioners.
24. A reading of the present final notice issued by the Municipality shows
the reference to the earlier notices issued in this regard. It is relevant to
note that the petitioners had also approached this Court and elsewhere earlier
also challenging the notice of demolition and seeking stay of those proceedings.
Hence, it is incorrect to contend factually too that the petitioners were not
granted the opportunity to put forth their contentions or for that matter the
Municipality had abdicated its discretion to the direction of this Court. We
reject the plea of the petitioners that the Municipality has failed to observe
the provisions of the Act.
25. We agree with the learned counsel for the 3rd respondent that except
for the inconsistent stand of the petitioners as to the character of their stay,
there is hardly any material at all to the petitioners to defend the proceedings
taken under Section 216(3) of the Act. Learned counsel for the petitioners
could not lay his hands on any materials even to substantiate the fact that the
buildings had been put up with the permission of the authorities under the
provisions of the District Municipalities Act.
26. Going by the very provisions of Rule 3(3) of the Tamil Nadu District
Municipalities Building Rules, construction in any land which is not under the
ownership of the petitioners can be made only with the consent of the owner.
Going by Section 216 of the Act wherever there is unauthorised construction or
construction is in violation of the planning permission, irrespective of the
fact as to whether the land is a leasehold land or under ownership, the
authorities concerned, who are empowered to grant permission or sanction
construction of a building, are equally vested with the authority to clear those
construction which are in violation of the provisions of the District
Municipalities Act, particularly Section 216(3) of the Act. In such
circumstances, it goes without saying that the exercise of the authority in this
regard is not dependent on any direction from this Court. On the other hand,
source of the authority is traceable to the provisions of the Act and not from
the judgment of this Court. Consequently, we do not find any justification in
the submission of the learned counsel for the petitioners that only consequent
on the directions of this Court the impugned notices were issued by the 2nd
respondent. The contention of the petitioners, if it is to be accepted, would
amount to inviting this Court to ignore the provisions of the Act to trace the
authority of the statutory body to the direction of this Court. All this Court
pointed out in its order dated 19.6.2007 was that the authorities were directed
to act in accordance with law to remove the encroachment. In fact, this only
indicates that the authorities were directed not to act arbitrarily and
capriciously, but to act in due observance of law. The impugned notices have
been issued under Sections 338, 339 read with Section 216(3) of the Act.
Therefore we hold that there is proper exercise of discretion on the factual
matrix of the case by the 2nd respondent.
27. Admittedly, the petitioners have not put up their constructions with
the permission from the Municipality. In the absence of any application shown
to this Court that the construction is made as per the planning permission of
the authority concerned, there is no gain saying that the authorities have acted
in violation of the provisions of the Act.
28. Even apart from all these, a reading of the notices impugned before
this Court clearly show the reference to the earlier notices issued by the
Municipality. A reference to the decision of this Court in the notice impugned
does not mean that the authorities have abdicated their discretion to the
dictates of this Court. Hence, going by the reference to the earlier notices,
the present notice is only a final notice calling upon the petitioners to
demolish or remove the unauthorised constructions within a time frame, failing
which the Municipality indicated their decision to remove the same by recovering
cost of the removal from the petitioners.
29.In these circumstances, we hold that there is no violation of
principles of natural justice in issuing the impugned notice. The said view
will also apply equally to the contention of the petitioners as regards the
applications filed seeking review of the order passed by this Court in
W.P.(MD)No.4563 and 8020 of 2006, dated 19.06.2007. As already stated, going by
the general tenor of the order dated 19.06.2007 and the present proceedings
emanating following the statutory provisions, we reject the plea of the
petitioners that the impugned proceedings are totally in violation of the
principles of natural justice.
30. As regards the contention of the 3rd respondent that the land in
question on which the petitioners have put up unauthorised construction is
forming part of an approved layout, and as such, there cannot be any permission
to the petitioners to have that construction, it is not necessary for us to get
into the said aspect of the matter for the simple reason that the petitioners
had not placed before this Court any material to show that there had been a
proper application made and even assuming there was an application made, this
has to comply with Rule 3(3) of Tamil Nadu District Municipalities Building
Rules, 1972. In any event, the decision of this Court in 2006 (1) CTC 241 – The
Chairman, M.M.D.A. v. S.Radhakrishnan clearly touches on the duty and
jurisdiction of the authorities concerned, particularly under the Town and
Country Planning Act, that if a layout approved is to undergo change in its
character, it necessary need to go through the process laid down therein. This
is apart from the fact that the petitioners are not members of the Society even
to go for this exercise by the statutory bodies.
31. Learned counsel for the petitioners contended that the 3rd
respondent’s ownership and title as to the land itself is a void one, since the
allotment of such a large extent of land to her is in gross violation of the
very scheme of the society and hence no purpose would be served in the
demolition of the buildings which stand in the property which is not under the
valid title of the 3rd respondent. We herein once again point out and record
the fair statement made by the learned counsel for the 3rd respondent that the
present impugned notices are mainly concerned about the demolition of the
unauthorised construction therein as initiated by the Municipality. The rights
of the 3rd respondent as the lawful owner of the property are issues which
necessarily have to be canvassed in a forum other than this Court under Article
226 of the Constitution of India. We agree with the submission of the learned
counsel for the 3rd respondent, particularly with reference to his reliance on
the decision in 2006 (5) SCC 282 cited supra, that even to grant a discretionary
prayer to a party complaining of disturbance to his holdings, there must be a
prima facie case made for a protection of the rights and the possible injury
that the party may suffer if an injunction is not granted. In the said
decision, the Apex Court held that in the absence of any material to
substantiate an injury that a party will suffer if demolition is to be ordered,
when the construction is clearly an unauthorised one, the Court cannot act on
any misplaced sympathy or hardship. Guided by the said decision of the Apex
Court, we do not find there exists a case for quashing the notices issued by the
2nd respondent herein. As rightly pointed out by the learned counsel for the
3rd respondent, title is a matter which needs to be tested on the basis of the
evidence available for the parties and hence has to be gone through only before
the forum.
32. The proceedings now under challenge in these writ petitions are the
final notices of demolition issued under the provisions of the Tamil Nadu
District Municipalities Act under Sections 338, 339 read with Section 216(3).
Going by the provisions of law, we do not find any justification in the plea of
the petitioners even to apply the principles of equity in their favour. The
decisions referred to by the learned counsel for the petitioners, particularly
(2006) 8 SCC 590 has no relevance to the facts of the case herein, since the
directions of this Court, dated 19.06.2007, in W.P.(MD)No.4563 and 8020 of 2006
have not in any manner stalled or curtailed the authority of the Municipal
Commissioner in exercising his discretion in the matter of demolition of
unauthorised constructions. The present writ petitions can only be viewed as an
attempt seeking review of the order passed by this Court in the earlier
proceedings, particularly on 25.02.2008 in W.P.(MD)Nos.9300 to 9305/2007 etc.
batch, wherein this Court has made a clear direction as to the removal of
unauthorised constructions. The petitioner in W.P.(MD) No.9300 of 2007 is one
of the petitioners herein in these writ petitions also, apart from others who
are parties herein.
33. In the above circumstances, we do not find any justification in
quashing the impugned notices issued by the 2nd respondent herein, the Municipal
Commissioner, Karaikudi Municipality. Consequently, all the writ petitions
stand dismissed. Connected M.P.(MD)No.1 of 2009 in all the writ petitions are
also dismissed. For the reasons already stated, M.P.(MD)No.1 of 2009 in
Rev.Aplw.(MD)SR Nos.40732 and 40734 of 2009 are also rejected.
34. Considering the orders passed, the Municipal authorities of Karaikudi
Municipality are directed to implement the orders of this Court already passed
without any further delay. It is made clear that any further delay in this
regard unmindful of the orders passed would certainly call for a serious action
from this Court and for the time being we do not propose to issue any order of
punishment on the Municipal Commissioner, Karaikudi Municipality. With the
above observation, Contempt Petition (MD)No.174 of 2008 is closed.
gb
To:
1. The Board of Council,
Karaikudi Municipality,
Karaikudi,Sivagangai District.
2. The Municipal Commissioner,
Karaikudi Municipality,
Karaikudi,
Sivagangai District.
3. S.Kalaiselvan,
The Commissioner,
Karaikudi Municipality,
Karaikudi