IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:05.01.2007 CORAM: THE HON'BLE MR. JUSTICE P. SATHASIVAM AND THE HON'BLE MR. JUSTICE S. TAMILVANAN W.P.No.13177 of 2001, W.P.(MD)Nos.8609 and 9669 of 2005 and connected miscellaneous petition. Karur 80' Road Residents Welfare Association rep. By its Secretary Mr. K. Muthusamy. .. Petitioner in all the Writ Petitions. vs. 1.The Secretary Department of Local Administration and Water Supply The Government of Tamilnadu Chennai 9. 2.The Director of Town Planning The Government of Tamilnadu M.M.D.A. Gandhi Eirwin Road Madras 8. 3.The District Collector Karur District, Karur. 4.The Commissioner Karur Municipality, Karur. 5.S. Sivasankaramurthy 6.S. Jayabalan (R.5 and R.6 were impleaded as respondents
5 and 6, as per the order of this Court
dated 30.01.2002 made in WPMP.No.32057
of 2001). .. Respondents in
WP.N o.13177/2001
1.The Chairman
Karur Municipality, Karur.
2.The Commissioner
Karur Municipality, Karur.
3.Karur Municipal Council
rep. By its Chairman
Karur Municipality, Karur.
4.K.V. Ramasamy
Chairman
Karur Municipality, Karur. .. Respondents in
WP.No.8609/2005
1.The State of Tamilnadu
rep. By its Secretary
Rural Development and Local
Administration Department
Fort St. George
Chennai.
2.The Secretary
Housing and Urban Development
Department, Fort St. George
Chennai.
3.The Commissioner of Town and
Country Planning
807 Anna Salai, Chennai 2.
4.The Collector
Karur District, Karur.
5.The Commissioner
Karur Municipality, Karur.
6.The Member Secretary/
Executive Authority/
Karur Local Planning Authority
Karur Municipality, Karur.
7.The Chairman
Karur Municipality, Karur.
8.K.V. Ramasamy
Chairman
Karur Municipality, Karur. .. Respondents in
WP.No.9669/2005
Writ Petitions filed under Article 226 of the Constitution of India praying for issuance of a writ of Mandamus as well as Certiorari, as stated therein.
Mr. K.M. Vijayan, Senior Counsel for Mr. B. Saravanan for petitioner in both the Writ Petitions (MD) No.8609 & 9669 of 2005.
Mr.Sathish Parasaran for Mr.V.Subramanian for petitioner in WP.No.13177 of 2001.
Ms. Bhavani Subbarayan, Government Advocate for State.
Mr. Subbiah for respondents in WP.No.8609 of 2005 and for R.5 and R.6 in WP.No.13177 of 2001.
Mr. R. Muthukumarasamy, Senior Counsel for Mr. N. Sampath for R.4 in WP.No.13177 of 2001.
COMMON ORDER
(Order of the Court made by P. SATHASIVAM,J.)
Karur 80 Feet Road residents Welfare Association represented by its Secretary, K.Muthusamy has filed all the above three writ petitions. In W.P.No.13177 of 2001, the Association has prayed to issue a writ of Mandamus directing the respondents to implement and execute Lakshmi Narayana Samudram Town Planning Scheme as notified in G.O.Ms.No.1636, dated 14.8.1973 and to direct the 1st respondent to reinitiate the land acquisition proceedings which were dropped in the year 1985 for the effective implementation of the said Lakshmi Narayana Samudram Town Planning Scheme and also to direct the 4th respondent to restrain any person from building any wall or erect any fence or other construction or projection or making any encroachment over any land intended for use as the street or lane or road which are contrary and not conforming to the Lakshmi Narayana Samudram Town Planning Scheme (in short, ‘LNS’ Town Planning Scheme).
2. In W.P.No.8609 of 2005 the same Association seeks to issue a writ of Certiorari calling for the records relating to the resolution passed by Karur Municipal Council in No.787, dated 9.9.2005 and the tender notice issued by the Commissioner, Karur Municipality in his proceedings dated 8.9.2005 and to quash the same as illegal.
3. In W.P.No.9669 of 2005 the said Association seeks to issue a writ of Certiorari calling for the records relating to the notification published in Tamil Nadu Government Gazette dated 22.12.2004 in Part VI, Section-1, issued by the Commissioner of Town and Country Planning, Chennai-2 in respect of variation to the sanctioned LNS Town Planning Scheme of Karur Local Planning area and to quash the same as illegal and without jurisdiction.
4. Since the reliefs prayed for in all the writ petitions are one and the same, they are being disposed of by this following common order.
5. The case of the petitioner is as follows:
The petitioner is an Association registered under the Tamil Nadu Societies Registration Act. The petitioner Association has been established to protect the interest of the residents of Karur 80 Feet Road. A scheme was formulated by Karur Municipality which was approved by the Director of Town Planning. The said scheme was called, “Lakshmi Narayana Samudram Town Planning Scheme”. The Scheme was also sanctioned by the Town Planning authority and thereafter the same was gazetted in the Tamil Nadu Government Gazette in G.O.Ms.No.1636, dated 14.8.1973. As per the scheme, 80 Feet road was proposed to be laid between Coimbatore Road and Sengunthapuram 5th Cross 40 Feet Road. Ever since the publication of the scheme in the Government Gazette dated 14.8.1973, the road between Coimbatore Road and Sengunthapuram 5th Cross 40 Feet Road being used as 80 feet road by the general public of Karur town. Since the 80 feet road is located in the heart of Karur Town every day it is witnessing heavy vehicular traffic.
6. Since the 80 Feet Road was not properly maintained by the Karur Municipality, the petitioner Association filed the writ petition, W.P.No.13177 of 2001 seeking for the issue of a writ of Mandamus directing the respondents therein to implement and execute the Lakshmi Narayana Samudram Town Planning Scheme as notified in G.O.Ms.No.1636 dated 14.8.1973.
7. In the meanwhile, an Agenda was circulated by Karur Municipality for the purpose of taking decision in various issues in the Ordinary Meeting conducted by Karur Municipal Council on 29.7.2005. One of the issues in the Agenda in serial No.65 was relating to putting up fence on the 80 Feet road, Karur. On the above Agenda, in the Municipal Council meeting held on 29.7.2005, a resolution was passed in No.515 dated 29.7.2005 in respect of erecting fencing on the 80 Feet road and the same was approved by the Municipal Council. By the impugned resolution dated 9.9.2005, the fence is going to be erected in the middle of 80 Feet Road at Karur. In order to help the Chairman, Karur Municipality, the resolution dated 9.9.2005 was passed by Karur Municipal Council. According to the petitioner, the said resolution, is illegal, arbitrary and the same was passed with mala fide intention of promoting interest of one K.V.Ramasamy, Chairman, Karur Municipality, Karur and the same would lead to heavy traffic jam and hamper the vehicular movement and cause serious hardship to the members of petitioner Association and the general public.
8. A legal notice was issued by the petitioner on 8.6.2004 and the same was placed before the local Planning Authority, Karur Municipality on 30.7.2004. The objections of the petitioner appear to have been rejected in the said Meeting on the ground that the said objections were contrary to the decisions of the Meeting conducted on 22.6.2001. Meanwhile, in the proceedings dated 2.12.2004, the Commissioner of Town and Country Planning, Chennai informed that the Member Secretary/Executive Authority/ Karur Local Planning Authority by letter dated 6.8.2004 had reported to the Commissioner, Town and Country Planning that there were no objections or suggestions in respect of variations in the 80 Feet road and further requested him to confirm the variation. The Commissioner of Town and Country Planning accordingly confirmed the variation of 80 Feet Road under section 33(2) of Town and Country Planning Act 1971 (in short, ‘the Act’) and directed the relevant notification be published in the Government Gazette. Consequently, necessary notification was published in the Tamil Nadu Government Gazette dated 22.12.2004 confirming the variation of 80 Feet Road by reducing the width from 80 feet to 45 Feet. The objections made by the petitioner were rejected by Karur Local Planning Authority on baseless grounds and the same was not communicated to the petitioner, nor to its counsel who issued the legal notice. Hence, the order of Karur Local Planning Authority is liable to be quashed on the simple ground that the said order has been passed without considering the objections made by the petitioner and without even forwarding the same to the Commissioner of Town and Country Planning. The notification published in the Tamil Nadu Government Gazette dated 22.12.2004 in respect of variation of the Scheme is under challenge in W.P.No.9669 of 2005.
9. The case of Karur Municipality is as under:-
Since the land owners agreed to give their lands to form 45 Feet width Scheme Road, Karur Municipal Council reduced the width of the road from 80 Feet to 45 Feet and passed necessary resolution to that effect. As there are lot of constructions coming in the way of proposed 80 Feet road and in view of insufficiency of funds and impossibility to mobilize sufficient funds to form 80 Feet road, the Local Planning Authority of Karur Municipality decided to form 45 Feet Road and varied the width of the road from 80 Feet to 45 Feet by resolution No.88 dated 31.7.2001. The formation of 45 Feet road has been recommended by the Commissioner of Town and Planning, Chennai on 10.8.2001 and 24.9.2002. In order to get the opinion from the general public, the revised scheme was published in Tamil dailies, Dinamalar dated 4.6.2004 and Malaimurasu dated 7.6.2004. The same was notified in the Notice Board of Karur District Collectors Office and the office of Deputy Director of Town Planning at Trichy. One V.Subramanian, Advocate, Chennai sent objections on behalf of Muthusamy and the same was placed before the Town Planning Officer who considered and rejected the same. The change in the road scheme was confirmed and recommended to the Commissioner of Town Planning on 6.8.2004. Ultimately, final order was passed on 2.12.2004 under the Town and Country Planning Act. The change in the scheme was published in the District Gazette dated 15.7.2004 and in the Tamil Nadu Government Gazette dated 22.12.2004. For formation of 45 Feet road, lands were obtained from the respective land owners by Karur Municipality by way of deeds of gift and in respect of remaining properties, the land owners were allowed to construct buildings by issuing No Objection Certificate. Karur Municipality is taking necessary steps to form 45 Feet scheme road in the properties in dispute. Hence, the petitioner is not entitled to insist Karur Municipality to form 80 Feet road.
10. The stand of Director of Town and Country Planning, Government of Tamil Nadu is as follows:
The Lakshmi Narayana Samudram Town Planning Scheme comes under Karur Local Planning Authority/Municipality. In that scheme map 80 Feet BB Road was proposed to be laid between Coimbatore Road and Sengunthapuram 5th Cross 40 Feet Road. Karur Local Planning Authority/ Municipality in its resolution No.83 dated 27.2.2004 requested to reduce the 80 Feet wide BB Road into 45 Feet and to use T.S.No.201/2pt., 199/pt. and 207/4pt. for residential purpose. Based on the resolution and considering the recommendation of the Regional Deputy Director, the draft variation notification was issued in proceedings, Roc. No.8346/2004/DP3, dated 19.4.2004 and the same was published in Tamil Nadu Government Gazette dated 12.5.2004. The petitioner Association sent objections by letter dated 6.8.2004. The Municipality overruled the objections of the petitioner and requested to confirm the variation. Accordingly, the confirmation to the draft variation was issued in proceedings dated 2.12.2004 as per section 33(2) of Town and Country Planning Act, 1971. The same was also published in Tamil Nadu Government Gazette dated 22.12.2004 in accordance with the statutory provisions.
11. With the above pleadings, we heard Mr.K.M.Vijayan learned senior counsel and Mr.Satish Parasaran, learned counsel for the petitioner, Mr.Elango, learned Special Government Pleader for the Government and Mr.R.Muthukumaraswamy, learned senior counsel and Mr.Subbiah, learned counsel for Karur Municipality.
12. The only grievance of the petitioner Association is that having formulated and notified the scheme called, “Lakshmi Narayana Samudram Town Planning Scheme” providing a width of 80 Feet in between Coimbatore Road and Sengunthapuram 5th Cross 40 Feet Road, the respondents are not justified in reducing the width of the road to 45 Feet.
13. It is not in dispute that Karur Municipal Council on various dates, viz., from 23.5.1960 to 26.6.1970 requested the Government to sanction the Lakshmi Narayana Samudram Town Planning Scheme. In response to the resolutions and in exercise of powers conferred under section 14(3) of the Town and Country Planning Act, 1920 (Tamil Nadu Act, VII of 1920), the scheme was approved by Karur Municipality and sanctioned by the Government. It is not in dispute that the same was also notified in G.O.Ms.No.1636 dated 14.8.1973.
14. It is the claim of the petitioner Association that with the support of land owners, 80 Feet road was formed and the same is being used as road for several years. It is the specific stand of Karur Municipality that though the scheme was notified to form 80 Feet road between Coimbatore Road and Sengunthapuram 5th Cross 40 Feet Road, the same was not implemented due to lack of funds. In the counter affidavits filed by the Director of Town and Country Planning, Government of Tamil Nadu and the Commissioner, Karur Municipality it is specifically stated that the Municipality in its resolution No.83 dated 27.2.2004 requested to reduce 80 Feet wide BB Scheme road into 45 Feet and to use T.S.No.201/2pt., 199/pt. and 207/4pt. for residential purposes. The said resolution was forwarded to the Regional Deputy Director who, in turn, forwarded the same to the Government for approval. It is also brought to our notice that based on the resolution of the Municipality and the report of Regional Deputy Director, draft variation notification was issued in proceedings dated 19.4.2004. The same was also published in the Tamil Nadu Government Gazette No.18 Part VI, Section-1, page No.151, dated 12.5.2004. No doubt, the petitioner Association raised objections stating that 80 Feet road is required, more particularly, in view of increased business activities and vehicular movements.
15. Learned counsel appearing for the Municipality has placed records before us, which show that the Municipality, after considering the objections and suggestions overruled the same and requested the Director of Town and Country Planning to confirm the draft variation notification. Pursuant to the said request, confirmation to the draft variation was issued in proceedings Roc No.8346/2004/DP3 dated 2.12.2004 as per section 33(2) of the Town and Country Planning Act. Finally, the notification was also published in Tamil Nadu Government Gazette dated 22.12.2004
16. Mr.K.M.Vijayan, learned senior counsel appearing for the petitioner submitted that though the petitioner Association raised objections to the variation, the authority proceeded with the matter as if no one raised objection to the variation and passed the resolution in the Municipal Council. He further contended that in view of valid objection by the petitioner Association, the proceedings of the Commissioner/Director of Town and Country Planning, Chennai dated 2.12.2004 confirming the variation is liable to be quashed. In the light of the above contention, we verified the said proceedings which is available at page 155 of the typed-set of papers. In third paragraph it is stated that the Member Secretary, Karur Local Planning Authority in his letter third cited has reported that no objections and suggestions were received or publication of the above said notification and requested to confirm the same.” As against this, learned counsel appearing for the Municipality brought to our notice the objections raised by the petitioner Association as well as the decision taken by the Municipality with reference to the same. On perusal of the materials available, we are satisfied that the reference made in the order of Commissioner of Town and Country Planning is factually incorrect and we hold that the objections of the petitioner Association were duly considered and rejected by the Municipality.
17. It is not in dispute that any development plan approved under Section 29 of the Act is liable to be varied or revoked by a subsequent plan and it is clear from Section 33 of the Act. We find that the variation sought for was duly resolved by the Municipality, the draft notification was published inviting objections from the public, after considering the objections and the same was approved by the authority concerned and notified in Tamil Nadu Government Gazette, which, in our view, satisfy all the requirements stated in section 33 of the Act. Accordingly, we reject the contention raised by the learned senior counsel for the petitioner.
18. We have already referred to the statement of Commissioner that though the scheme was formed as early as in the year 1973 with 80 Feet wide road, due to paucity of funds for acquiring lands from various persons, Karur Municipality Council passed resolution reducing the width of the road from 80 Feet to 45 Feet. It is also brought to our notice that the land owners agreed to give their lands by way of gift to form 45 Feet road. As discussed earlier, the said resolution was duly published in Tamil dailies, Dinamalar dated 4.6.2004 and Malaimurasu dated 7.6.2004 calling for objections from the public. That apart, it was also published in the Notice Boards of the Collectorate, Karur and Town Planning Deputy Directors Office at Trichy. The records produced by the respondents show that only one objection from one V.Subramanian, advocate, Chennai on behalf of one Muthusamy and the same was discussed and rejected and the variation of scheme by reducing the width from 80 Feet to 45 Feet was confirmed by the Commissioner of Town and Country Planning which was duly notified in Tamil Nadu Government Gazette. From the materials placed before us we are satisfied that the Municipal Council has the power to modify or vary the scheme framed earlier. We are also satisfied that the variation of scheme was duly approved as per the statutory provisions and we find no flaw warranting interference.
19. It is not in dispute that Karur is a growing town having more number of business activities, particularly in textiles. Due to increase in business activities, the vehicular movement is also increased. In those circumstances, there cannot be any second opinion that Karur, a business town, requires wide roads for free flow of traffic and also for convenient use by one and all. However, it is the responsibility of the Municipal body to take care of the interests of the people and implement such schemes subject to its financial position. We have already referred to the information furnished in the counter affidavit filed by the Commissioner, Karur Municipality that it is not in a position to meet the entire expenditure incurred in the formation of 80 Feet road including compensation payable to the land owners. It is to be noted that even for formation of 45 Feet wide road, the lands were obtained from the respective land owners by way of gift by Karur Municipality. The Commissioner has also assured that Karur Municipality is taking necessary steps to form 45 Feet road. The stand taken by the Municipality cannot be ignored lightly. It is the responsibility of the Municipality to provide all basic amenities such as potable water, sewage, maintaining good roads, etc., and at the same time, it is not for this Court to thrust the Municipality to execute the scheme which according to the Municipality is not feasible or possible to implement due to lack of adequate funds.
In those circumstances, while accepting the stand taken by Karur Municipal Council, we hope and trust that by adopting several methods including securing loan from government owned finance bodies as well as with the assistance of the State Government, the Karur Municipality would take appropriate steps in the matter of widening road as far as possible, which, we feel, is feasible and possible in near feature. With the above observation, we dismiss all the writ petitions. No costs. Consequently, connected miscellaneous petition is also dismissed.
Kh
To
1.The Secretary
Department of Local Administration
and Water Supply
The Government of Tamilnadu,Chennai 9.
2.The Director of Town Planning
The Government of Tamilnadu
M.M.D.A. Gandhi Eirwin Road
Madras 8.
3.The District Collector
Karur District, Karur.
4.The Commissioner
Karur Municipality, Karur.
5.The Chairman
Karur Municipality, Karur.
6.The Secretary
State of Tamilnadu
Rural Development and Local
Administration Department
Fort St. George
Chennai.
7.The Secretary
Housing and Urban Development
Department, Fort St. George
Chennai.
8.The Commissioner of Town and
Country Planning
807 Anna Salai, Chennai 2.