IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED:09.01.2007
CORAM:
THE HON'BLE MR. JUSTICE P. SATHASIVAM
AND
THE HON'BLE MR. JUSTICE N. PAUL VASANTHAKUMAR
WRIT APPEAL No.1839 of 2005
1.R. Remala
2.R. Shakila
3.M.P.Rajagopalan .. Appellants
vs.
1.Rajumani
2.The Commissioner
Mettupalayam Municipality
Mettupalayam, Coimbatore District. .. Respondents
Writ Appeal filed under Clause 15 of the Letters Patent against the order of His Lordship Mr. Justice K. Ravirajapandian made in W.P.No.13611 of 2005 dated 24.08.2005.
For appellants : Mr. K.M. Vijayan, Sr.Counsel
for Mr. R. Achuthan
For respondents : Mr. R. Muthukumarasamy, Sr.Counsel for Mr. N. Manoharan for R.1
Mr. V. Subbarayan for R.2
JUDGMENT
(Judgement of the Court delivered by P. SATHASIVAM,J.)
Aggrieved by the order of the learned single Judge dated 24.08.2005 made in W.P.No.13611 of 2005, the appellants, after getting leave, filed the above writ appeal.
2. The first respondent herein, writ petitioner-Rajumani, filed the writ petition seeking to issue a writ of Certiorarified Mandamus calling for the records pertaining to the proceedings dated 31.03.2005 of the second respondent herein, viz., Commissioner of Mettupalayam Municipality, to quash the same and to issue direction to the Municipality to pursue the writ petitioner’s application for plan approval in accordance with law.
3. Taking note of the civil dispute between the vendor of the writ petitioner and the appellants herein, the Commissioner rejected the planning permission sought for. Before the learned single Judge, it was contended that the stand taken by the Municipality is contrary to Section 203 of Tamil Nadu District Municipalities Act, 1920 and prayed for appropriate direction for the grant of planning permission. Before the learned Judge, the appellants herein filed an application to implead themselves as parties contending that unless the dispute is decided in the civil Court, the sale in favour of the writ petitioner cannot be considered as valid and on that score, the planning permission can not be granted. Not accepting the said contention of the proposed parties, the learned Judge, after recording the statement of the learned counsel for the writ petitioner that the writ petitioner would abide by the judgment of the civil Court if it is held by the civil Court that the suit property is the subject matter of disputed sale deed dated 8.2.2005, allowed the writ petition and issued direction to the Municipality to grant planning permission in accordance with the statutory provisions.
4. Mr. K.M.Vijayan, learned senior counsel for the appellants submitted that inasmuch as a dispute regarding the title of the property for which planning permission is sought is pending in O.S.No.39 of 2005 on the file of District Munsif, Mettupalayam, the learned Judge is not justified in issuing positive direction and in fairness, ought to have dismissed the writ petition in-limine. He also contended that the direction of the learned Judge to the authority is against the statutory provisions and abrogated the rights of the parties pending adjudication before the civil court.
5. On the other hand, Mr.R.Muthukumarasamy, learned senior counsel for the first respondent, by drawing our attention to a plan showing the lay out of house sites in T.S.No.10/3pt, 11 Ward-B, Block 32 of Mettupalayam Municipality, Coimbatore District, contended that first of all, the property for which planning permission is sought is not the subject matter of the suit and in any event, in view of the undertaking given by the writ petitioner to abide by the decision in the civil suit, no prejudice is caused to the appellants.
6. In the light of the above contentions, we verified the relevant documents, such as Joint Patta dated 20.01.2005 issued in favour of the appellants, plaint in O.S.No.39 of 2005 on the file of District Munsif, Mettupalayam, particularly, the relief prayed therein and communications from the Municipal authorities including copy of lay out plan. Though Mr.R.Muthukumarasamy, learned senior counsel for the first respondent, by taking us through the lay out plan, pointed out that the property for which planning permission is sought is not the subject matter of the civil suit, in view of the relief sought for in the civil suit, O.S.No.39 of 2005, particularly Clause (B) and in the light of the stand taken by the appellantsdefendants 1 to 3 in the said suit, we are of the considered opinion that till the matter is adjudicated by the civil Court and a decision is arrived at, there cannot be any positive direction to the Municipal authority for the grant of planning permission. Ultimately in the civil suit if the stand of the appellants is accepted, undoubtedly, it would create a problem, in case construction is put up based on the planning permission during the pendency of the suit. In fact, we have mentioned only few facts raised by both sides, and it is for the civil court to adjudicate the matter in detail and depending on the outcome of the suit, the parties are free to make application before the Municipal authority for necessary relief. Without following such recourse, the learned Judge committed an error in issuing direction based on the undertaking given by the writ petitioner. It is made clear that we are not expressing anything about the claim of the parties with reference to the property in question and in our view, the same has to be considered by the civil Court at length, and depending on the decision in the civil suit, the Municipal authority has to act.
Under these circumstances, the order of the learned Judge dated 24.08.2005 made in W.P.No.13611 of 2005 is set aside. Consequently, the writ appeal is allowed. No costs.
kh
To
The Commissioner
Mettupalayam Municipality
Mettupalayam,
Coimbatore District.
