Kalaiselvi v. Director Of Municipal Administration

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 23.08.2024

CORAM:

THE HONOURABLE MR. JUSTICE G.K.ILANTHIRAIYAN and W.M.P.No.22991 of 2024 Kalaiselvi ... Petitioner -Vs1. The Director of Municipal Administration, Municipality Office Campus, 75, Santhome High Road, Raja Annamalaipuram, Chennai-600 028.

2. The Commissioner, Municipal Corporation, Kamarajar Road, Sirkali, Mayiladurai-609 110.

3. The Collector, The Collectorate Office, Mayildadurai District.

4. The Thasildhar, Thasildhar Office, Sirkali Taluk, Mayiladurai District.

5. Sivadevan ... Respondents

Prayer : Writ Petition filed under Article 226 of Constitution of India praying for the issuance of a Writ of Mandamus, directing the first to fourth respondents particularly the second respondent not to grant permission or sanction for any layout in Nanjai Survey No.428 and 429 to an extent of 0.72.5 ares and 1.19 ares at Block No.50, Sirkali Village and Firka, Sirkali Taluk, Mayiladurai.

For Petitioner : Mr.Dakshayani Reddy Senior Counsel For Mr.G.Mohammed Aseef For Respondents For R1 & R2 : Dr.T.Seenivasan Special Government Pleader For R3 & R4 : Mr.N.Naveen Kumar Government Advocate For R5 : Mr.P.Srinivasan

ORDER

This writ petition has been filed for direction, directing the second respondent not to grant permission or sanction for any layout in Nanjai Survey No.428 and 429 to an extent of 0.72.5 ares and 1.19 ares at Block No.50, Sirkali Village and Firka, Sirkali Taluk, Mayiladurai. 2.

Heard the learned counsel appearing on either side and perused the materials placed before this Court.

3.

One Sivagami Aachi and her husband Ramanatha Chettiyar had leased out the property comprised in S.Nos.428 and 429 to an extent of 0.72.5 ares and 1.19 ares at Block No.50, Sirkali Village and Firka, Sirkali Taluk, Mayiladudurai, in favour of the petitioner. The petitioner and her husband are doing agriculture for the past several years. While being so, the lessor agreed to sell the property in favour of the petitioner and also entered into an agreement for sale on 10.05.1994. The petitioner also paid the substantial amount as advance. Thereafter, they had constructed a house in the year 1990 in one part of the said property and living there.

4.

While being so, the petitioner's husband died in the year 2021 leaving behind the petitioner and their daughters as his legal heirs. The said Sivagami Aachi and her husband Ramanatha Chettiyar died and as such, the petitioner approached the legal heirs for registration of sale deed. However, they have not come forward to register any sale deed in favour of the petitioner. While being so, the legal heirs of the said

Sivagami Aachi and Ramanatha Chettiyar had sold out the property in favour of the fifth respondent herein.

5.

Therefore, the petitioner filed a suit for permanent injunction in O.S.No.147 of 2023, on the file of the District Munsif Court at Sirkali. However, the said suit was withdrawn by the petitioner on 10.10.2023. Thereafter, the petitioner filed an application to reopen the suit in I.A.No.3 of 2023 in O.S.No.147 of 2023 and it is pending for enquiry. After purchase, the fifth respondent applied for approval of house plots comprised in R.S.Nos.428 and 429. The petitioner raised objection for approving the property which was purchased by the fifth respondent. However, the objection was rejected by the second respondent and sent a report dated 19.03.2024, to the first respondent stating that the application submitted by the fifth respondent can be considered for approval.

6.

After having been failed before the second respondent, the petitioner filed a writ petition before this Court in W.P.No.23799 of

2024, challenging the certificate issued by the second respondent dated 05.01.2023, thereby certified that the land comprised in Old S.No.423 situated at No.50, Sirkali Village, Block No.50 ad-measuring 7.50 ares is lying vacant as Tharisu without any usage for the past 30 years as burial ground. The subject property which was purchased by the fifth respondent is situated near to the property which is now certified by the second respondent as Tharisu and as such, the petitioner challenged the order dated 05.01.2023. This Court dismissed the said writ petition by an order dated 20.08.2024 holding that after having been failed before the second respondent by raising objection to grant an approval and also withdrew the suit filed by her, now, the petitioner cannot challenge the certificate issued by the second respondent.

7.

The learned Senior Counsel appearing for the petitioner submitted that the said burial ground is situated within 50 metres from the subject land which was purchased by the fifth respondent. The burial ground is used by the general public. Without considering the same, the second respondent certified that the said burial ground is not under usage

by the public and it is lying vacant as Tharisu. She further submitted that as per the DTCP Rules, no layout permission should be granted when the proposed land is within 90 metres from burial ground. Therefore, the second respondent ought not to have issued such certificate. 8.

It is seen from the report dated 19.03.2024, issued by the second respondent to the first respondent revealed that already the property which was purchased by the fifth respondent has been laid out by the proceedings in ROC.No.1141/2023/24/TCP dated 11.01.2024 and accordingly, the house plots were divided and are under usage of general public. Therefore, now, the petitioner cannot challenge the certificate issued by the second respondent.

9.

That apart, already the petitioner filed a suit for bare injunction as against the fifth respondent in O.S.No.147 of 2023 and the same was withdrawn. In fact, the petitioner did not file any suit for specific performance as against the legal heirs of the deceased land owners viz., Sivagami Aachi and Ramanatha Chettiyar who had entered

into an agreement for sale with the petitioner. If at all there is any right over the property, which was already purchased by the fifth respondent, the petitioner ought to have filed a suit as against the original owners of the property as per the agreement for sale.

10.

In view of the above discussions, the direction sought for in this writ petition cannot be granted and the writ petition is devoid of merits and is liable to be dismissed. Accordingly, the Writ Petition stands dismissed. Consequently, connected miscellaneous petition is closed. There shall be no order as to costs.

23.08.2024 Internet: Yes Index : Yes/No Speaking/Non Speaking order rts

G.K.ILANTHIRAIYAN. J, rts To

1. The Director of Municipal Administration, Municipality Office Campus, 75, Santhome High Road, Raja Annamalaipuram, Chennai-600 028.

2. The Commissioner, Municipal Corporation, Kamarajar Road, Sirkali, Mayiladurai-609 110.

3. The Collector, The Collectorate Office, Mayildadurai District.

4. The Thasildhar, Thasildhar Office, Sirkali Taluk, Mayiladurai District.

and W.M.P.No.22991 of 2024 23.08.2024