Lalitha Devi v. The Commissioner,

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 27.10.2021 CORAM :

THE HONOURABLE MR.JUSTICE N.ANAND VENKATESH W.P. No.16992 of 2010 1.Lalitha Devi 2.RathnaDevi 3.Jothi 4.Asha Petitioners -VsThe Commissioner Corporation of Coimbatore, Coimbatore.

Respondent Prayer:

Writ Petition filed under Article 226 of the Constitution of India for issuance of a Writ of Mandamus, directing the respondent to restore the petitioners property in S.F.No.321 measuring 6120 Sq.ft, Singanur Village, Coimbatore in the condition that existed at the time of encroachment by the respondent and handover the same to the petitioners as vacant land.

[Prayer Amended as per order dated 07.11.2013 in M.P.No.1 of 13 in W.P.No.16992 of 2010] For Petitioners :

Mr.A.Muthukumar For Respondent :

Mr.S.Saravanan Standing Counsel

O R D E R

This writ petition has been filed for issue of writ of mandamus directing the respondent to restore the petitioners' property to its original position and to hand over the same to the petitioners.

2.Originally the writ petition was filed to forbear the respondent Corporation from establishing the Corporation Park in the property belonging to the petitioners measuring an extent of

6120 Sq.Ft. comprised in S.F.No.321 situated at Sanganur Village, Coimbatore. During the pendency of the writ petition the respondent proceeded to establish the park and hence the relief was amended by an order dated 07.11.2013. 3.When the matter came up for final hearing on 27.08.2021, this Court passed the following order:

This writ petition has been filed for a direction to the respondent to restore the petitioners property to its original condition.

2.The grievance of the petitioners is that the subject property belongs to them absolutely by virtue of the registered Sale Deed dated 24.10.2005 and the Rectification Deed dated 07.10.2006 and the further case of the petitioners is that a joint patta was also given in their name for the subject property. While so, the respondent Corporation had constructed a wall around the property and this was questioned by the petitioners. Initially, the writ petition was filed seeking for a direction to the respondent Corporation not to interfere with the property belonging to the petitioners. During the pendency of the writ petition, the wall seems to have been constructed around the property and therefore, the relief was amended by the petitioners.

3.The learned counsel for the petitioners submitted that the work was carried out by the respondent Corporation in spite of interim orders passed by this Court and contempt petition was also filed. However, since the writ petition pertained to the year 2010, this Court thought it fit to close the contempt petition and take up the writ petition itself for final hearing.

4.The respondent Corporation has filed a counter affidavit. The Corporation has taken a defence to the effect that a layout approval was granted by the Deputy Director of Town and Country Planning, Coimbatore and Nilgris through proceedings in L.P.DM.No/D.D.T.P.(CNR) No.34/71. While approving the layout, certain portions were reserved for developing a Park for the benefit of the general public. This portion is said to have been purchased by the petitioners and therefore, the respondent Corporation is questioning the very claim of the ownership made by the petitioners.

5.In reply to the said counter, the learned counsel for the petitioners submitted that the layout was not granted approval by the local authority and that apart, no gift deed was executed in favour of the respondent Corporation and therefore, there is no question of reserving any portion as OSR for the purpose of putting up a park or a playground. Therefore, the learned counsel for the petitioners submitted that the stand taken by the respondent Corporation is unsustainable.

6.The learned Standing Counsel appearing on behalf of the respondent Corporation shall furnish the following documents to this Court:

(a)The layout approval granted by the Town and Country Planning authority in proceedings in L.P.DM.No/D.D.T.P.(CNR) No.34/71.

(b)The layout approval granted by the local authority and (c)The gift deed executed at the time of giving the layout approval.

7.The above documents, if available, will enable this Court to pass final orders in this writ petition. 8.Post this case under the caption 'For Passing Final Orders' on 09.09.2021. It is made clear that on the date of hearing, the above documents must be furnished before this Court.

4.Pursuant to the above order, the matter was once again taken up for hearing on 23.09.2021 and this Court passed the following order:

For the query that was posed by this Court on 26.08.2021, the learned standing counsel appearing on behalf of the Corporation was able to show this Court only a lay out approval that was given in the year 1971. This Court is not fully convinced with the stand taken by the respondent Corporation, since the respondent Corporation has granted planning permission and building approval for the very same property in the year 2001. That apart, the revenue department has also recognized the ownership and has issued a joint patta. All of a sudden, a stand was taken in the year 2010 as if the property was earmarked for a park and for a common purpose. Unfortunately, the petitioners

were completely taken by surprise since they had no occasion to know that it was so earmarked. Therefore, unless a convincing answer is given by the respondent Corporation, this Court will have no other option except to interfere with the action taken by the respondent. The learned standing counsel seeks time to take instructions. Post this case under the caption, 'for orders' on 07.10.2021.

5.The matter was once again taken up for hearing on 07.10.2021 and this Court passed the following order: Learned Standing Counsel appearing on behalf of the respondent Corporation sought for some time to provide the information as to the present status of the place that has been earmarked as 'Open Space' and the place that has been earmarked for 'Public Purpose'' in the layout plan. This information will be very vital in order to enable this Court to understand the present status of the layout. That apart, in the layout plan that has been submitted before this Court, there are only 48 plots and, whereas in the counter filed by the respondent corporation, it is stated that the approved layout consists of 50 residential plots. This position must also be clarified by the respondent corporation.

Post this case under the same caption on 22.10.2021.

6.The writ petition was once again posted for hearing on 22.10.2021 and this Court passed the following order: Pursuant to the orders passed by this Court on 07.10.2021, the matter was listed for hearing today. Learned Standing Counsel appearing on behalf of the respondent Corporation gave his answers for the queries posed by this Court on 07.10.2021.

2. Insofar as the discrepancy between the layout plan and the counter filed by the respondent Corporation in mentioning the number of plots, the learned Standing Counsel submitted that there are only 48 plots and it has been mistakenly mentioned as 50 in the counter affidavit. Insofar as the other query regarding the status of the open space and the place earmarked for public purpose, the learned Standing Counsel submitted that the place earmarked as open space is maintained as a park and insofar as the place earmarked for public purpose, a portion is used as a

gymnasium maintained by the Corporation and the rest is maintained as a park.

3. On the contrary, the learned counsel for the petitioner submitted that there are pucca constructed houses numbering 5 in the place that has been earmarked as open space. That apart, Plot Nos.49 and 50 have been located within the space that has been earmarked for public purpose. It is further stated that in Plot No.49, there is a four storeyed apartment in existence and in Plot No.50, there is an independent house with one floor.

4. In view of the contrary stand that has been taken, this Court has to necessarily appoint an Advocate Commissioner to ascertain the truth. Ultimately, based on the report filed by the Advocate Commissioner, this Court may have to proceed further very seriously.

This Court expects that the authorities make their statements before this Court with more responsibility, failing which it will amount to contempt of Court. Before proceeding further to appoint an Advocate Commissioner, this Court wants to give one more chance to the learned Standing Counsel to take instructions and report before this Court.

5. Post this case under the caption 'For Passing Further Orders' on 27.10.2021.

7.When the matter was taken up for hearing today, the learned Standing Counsel appearing on behalf of the Coimbatore Corporation based on the written instructions received from the Commissioner of Coimbatore Corporation submitted that the earlier oral instructions that was given by the concerned officer were not factually correct. It is seen from the written instructions that the facts that were provided by the learned counsel for the petitioner with regard to the present status of the open space and the place earmarked for public purpose, proves to be correct. The learned Standing Counsel appearing on behalf of the Coimbatore Corporation submitted that submissions were made before this Court on 22.10.

2021 only based on the oral instructions received and the learned Standing Counsel got the correct picture only after getting the written instructions from the Commissioner of Coimbatore Corporation. This Court cannot blame the learned Standing Counsel for the representations made on 22.10.2021 since such representations were made only based on the instructions received. Therefore, if at all somebody has to be blamed, it is only the concerned officer who gave the instructions to the Standing Counsel who has to be proceeded against.

8.It is clear from the written instructions that insofar as the place earmarked for public purpose is concerned, there is a four storeyed apartment and an independent house with one floor. The same is clear from the photographs that have been annexed along with the written instructions. The portion of the property that is now claimed by the petitioners is also situated in this portion of the property measuring an extent of 6120 Sq.Ft. It is not known as to how the sanction was given for the construction of houses in a place earmarked for public purpose, if really it is within the control of the Coimbatore Corporation as per the sanction granted for the layout. The fact that such substantial constructions have been made only shows that the property was never under the control of the Coimbatore Corporation.

All of a sudden, they have proceeded to put up a park in the property belonging to the petitioner and in order justify the same, they have now come up with the so-called sanction plan that was given in the year 1971. Except the plan there is nothing to show that the property that was earmarked for public purpose was even gifted to the respondent Corporation. The respondent Corporation is expected to take a consistent stand with regard to the property that is said to have been earmarked for public purpose. On the one hand they cannot keep allowing substantial constructions being put up by private parties in the property and on the other hand choose a particular portion in the property and put up a park.

This is nothing but arbitrary exercise of power and it is quite unfortunate that the respondent Corporation was not consistent in the manner in which it dealt with the property which is said to have been earmarked for public purpose. Initially this Court was inclined to proceed against the concerned officials who gave patently wrong information to the learned Standing Counsel appearing on behalf of the Corporation. However, the learned Standing Counsel submitted that the concerned officer had joined very recently and therefore, sought for pardon. This Court did not proceed further against the concerned official only based on the request made by the learned Standing Counsel appearing on behalf of the respondent Corporation.

9.It is clear from the above that the respondent Corporation has miserably failed to establish their right over the subject property. The respondent Corporation is not in control of the property and there is no record to show that the property was gifted to the respondent Corporation. That apart the property was purchased by the petitioners through a registered Sale Deed dated 24.10.2005 and joint patta has also been granted in favour of the petitioners for the property. Therefore, if really this place was earmarked for public purpose, even the revenue department would not have issued a joint patta in favour of the petitioners.

10.The up short of the above discussion, leads to the only conclusion that the petitioners are entitled for the relief sought for in this writ petition.

11.As a result, this writ petition stands allowed. No Costs. Sd/- Assistant Registrar(CS-V) //True Copy// Sub Assistant Registrar ssr To The Commissioner Corporation of Coimbatore, Coimbatore.

+1cc to M/s.A.Muthukumar, Advocate, S.R.No.56017 +1cc to M/s.S.Saravanan, Advocate, S.R.No.58484 W.P. No.16992 of 2010 KSM(CO) SU(24/11/2021)