N.Saravanan v. K.John Peter Raj

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 22.12.2016

CORAM:

THE HONOURABLE MR.JUSTICE R.SUBBIAH AND THE HONOURABLE MRS.JUSTICE J.NISHA BANU W.A.[MD].No.1569 of 2016 and W.M.P.(MD).No.11619 of 2016 N.Saravanan : Appellant/6th Respondent Vs.

1.K.John Peter Raj : 1st Respondent/Petitioner 2.The Commissioner of Town and Country Planning, Town and Country Planning Department, 807, Anna Salai, Chennai 600 002.

3.The Deputy Director of Town and Country Planning, Ramnad-Pudukkottai Region, Sivagangai, Sivagangai District.

4.The District Collector, Ramanathapuram District, Ramanathapuram.

5.The Commissioner, Paramakudi Municipality, Paramakudi, Ramanathapuram District.

6.The Tahsildar, Paramakudi Taluk, Ramanathapuram District.

: Respondents 2 to 6/ Respondents 1 to 5 PRAYER: Writ Appeal is filed under Clause 15 of the Letters Patent against the order dated 30.10.2015, made in W.P.(MD).No.10398 of 2013.

Prayer in WP(MD). 10398/ 2013 :

Writ Petition is filed under Article 226 of the Constitution of India, praying this Court To issue a Writ of Mandamus, directing the respondents 1 to 5 to forbear the 6th respondent or persons claiming under him from converting the land in Survey NO. 92/1, Kattuparamakudi Village, Paramakudi Municipality, whch is

earmarked as a park and water channel as per the layout approved by the 2nd respondent dated 20/09/1982, to any other purpose and consequently direct the respondents to maintain the said lands as part and water channel .

For Appellant : Mr.D.Selvam For Respondent No.1 : Mr.Md.Athiff For M/s.Ajmal Associates For Respondent Nos.2 to 4 : Mr.N.S.Karthikeyan Additional Government Pleader

JUDGMENT

[Judgment of the Court was made by R.SUBBIAH, J.] This Writ Appeal has been filed as against the order dated 30.10.2015, made in W.P.(MD).No.10398 of 2013, allowing the Writ Petition filed by the first respondent herein.

2. The said Writ Petition was filed by the first respondent herein seeking a Writ of Mandamus, directing the respondents 1 to 5 therein to forbear the sixth respondent or persons claiming under him from converting the land in Survey No.92/1, Kattuparamakudi Village, Paramakudi Municipality, which is earmarked as a Park and Water Channel, as per the layout approved by the second respondent, dated 20.09.1982, or to any other purpose and consequently to direct the respondents therein to maintain the said lands as Park and Water Channel.

3. The case of the first respondent/Writ Petitioner before the learned Single Judge is that he is one of the residents of Bharathi Nagar, Paramakudi, Ramanathpuram District. The residential area of the first respondent/Writ Petitioner and the property were initially developed by one Kariyakonar and layout was also approved by the second respondent therein, on 29.01.1982 and also approved by the fourth respondent therein, on 25.05.1982, subject to the condition that the space earmarked for the school premises and the Park and the other open space should be maintained and the same should not be utilized for any other purpose.

4. While so, the appellant/sixth respondent, who is also one of the purchasers of the plot from one M.Rose Mahushabin, tried to put up construction in the place earmarked for the purpose of maintaining the Park and the Water Channel. In this regard, the first respondent/Writ Petitioner submitted a representation dated

08.06.2013 to the respondents 1 to 5 to prevent the appellant/sixth respondent from converting the land earmarked for Park in S.No.92/1 or for any other purpose, by putting up construction in the said lands. Since no action was taken on the said representation, the first respondent/Writ Petitioner filed the said Writ Petition for the relief stated supra.

5. A learned Single Judge of this Court, by order dated 30.10.2015, after hearing both sides and by placing reliance on the Judgment of this Court in Alamunagar Residents Welfare Association Vs.State of Tamil Nadu, reported in 2010 (4) LW 76, disposed of the said Writ Petition and directed the fourth respondent therein to initiate proceedings to restore the land earmarked for Park and Water Channel, by issuing notice to the first respondent/Writ Petitioner and the appellant/sixth respondent. Aggrieved over the same, the appellant/sixth respondent has come up with this Writ Appeal.

6. It is the submission of the learned counsel appearing for the appellant that it is not correct to state that the appellant was trying to put up construction in the place earmarked for Park and Water Channel. In support of his contention, the learned counsel for the appellant invited the attention of this Court to a notification issued by the Paramkudi Municipality, wherein some survey numbers and some places were mentioned as the place earmarked for Park. The learned counsel for the appellant, by heavily relying upon the said notification, submitted that the subject land was not mentioned in the notification, which would go to show that the said place has not been earmarked either for Park or for Water Channel.

7. The learned counsel appearing for the first respondent opposed the said submission made by the learned counsel for the appellant on the ground that the said notification was issued, subsequent to the order passed by the learned Single Judge, in respect of some survey numbers and places, which were earmarked for Park. Insofar as the subject land is concerned, it has already been earmarked as Park. Hence, naturally, the survey number of subject land would not find a place in the subsequent notification. Thus, according to the learned counsel, the appellant cannot rely upon the said notification and therefore, he sought for dismissal of the Writ Appeal.

8. We have considered the above submissions made on either side. Irrespective of the submission made by the learned counsel on either side, we are of the considered view that the question as to whether the place in question has been earmarked for Park or Water Channel cannot be adjudicated upon in this Writ Appeal, because it is the well settled law that the disputed questions of fact cannot be gone into in a Writ Petition by exercising the jurisdiction under Article 226 of the Constitution of India. The

learned Single Judge has passed the order, not only based on the submission made by the learned counsel for the first respondent/Writ Petitioner, but also taking into account the submission made by the official respondents. Moreover, the learned Single Judge has given a direction to the respondents to restore the said land only after giving notice to the appellant herein. Therefore, if any adverse order is passed against the appellant, he is always at liberty to challenge the same in the manner known to law. When that being the position, this Court is not inclined to entertain the present Writ Appeal. Hence, the Writ Appeal is dismissed. If the appellant has any grievance, he is at liberty to work out his remedy before the appropriate forum. No costs. Consequently, connected Miscellaneous Petition is closed. Sd/- Assistant Registrar /True Copy/ Sub Assistant Registrar To 1.The Commissioner of Town and Country Planning, Town and Country Planning Department, 807, Anna Salai, Chennai 600 002.

2.The Deputy Director of Town and Country Planning, Ramnad-Pudukkottai Region, Sivagangai, Sivagangai District.

3.The District Collector, Ramanathapuram District, Ramanathapuram.

4.The Commissioner, Paramakudi Municipality, Paramakudi, Ramanathapuram District.

5.The Tahsildar, Paramakudi Taluk, Ramanathapuram District.

+1 cc to M/S.D.SELVAM, Advocate SR.No.82892 +1 cc to Special Government Pleader Sr.No.82984 JUDGMENT MADE IN W.A.[MD].No.1569 of 2016 22.12.2016 SMA/SS-3/SAR-1/05.01.2017:4P/8C