Mrs.J.Shanthi v. The Collector Kancheepuram District

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED:03.12.2009CORAM:THE HON'BLE MR.JUSTICE P.JYOTHIMANIWRIT PETITION NO.21765 OF 2009AND M.P.NO.1 OF 2009..Mrs.J.Shanthi.. Petitionervs.1.The CollectorKancheepuram DistrictKancheepuram.2.The PresidentThaiyur PanchayatThirupporur Panchayat UnionChengalpattu TalukKancheepuram District... RespondentsWrit Petition filed under Article 226 of the Constitution ofIndia praying for issuance of a Writ of Mandamus as statedtherein.For petitioner : Mr.M.VaidyanathanFor respondents: Mr.R.Murali Government Advocate for R.1 Mr.N.R.Chandran,Sr.Counsel for Mr.R.Kannan for R.2..ORDERThe writ petition is filed by the petitioner for directionagainst the respondents to accept the gift to an extent of 20cents comprised in Part of S.F.No.1351/5A in Thaiyur Village andPanchayat on behalf of the said Panchayat towards "open spacereservation", as stipulated in the planning permit bearingNo.Na.Ka.10236/2009 BA2 dated 11.08.2009.2. The writ petitioner is the absolute owner of the vacantland measuring 2.00 acres comprised in Survey No.1351/3A and https://hcservices.ecourts.gov.in/hcservices/ 1351/5A in Thaiyur village, Chengalpattu Taluk, KancheepuramDistrict. She applied for a planning permit on 27.02.2009, forconstructing residential apartments on the above said site to theCommissioner of Town and Country Planning, Chennai 2. The saidapplication was considered and sanction order was passed on11.08.2009, permitting the petitioner to construct 184 residentialapartments with direction to given an extent of 20 cents to theThaiyur Village Panchayat towards open space reservation, forwhich the petitioner has executed a registered gift deed in favourof the second respondent Panchayat.2(a). It is stated that, according to planning permit, thepetitioner has written to the second respondent on 18.8.2009,requesting the second respondent to give willingness to accept thegift deed in favour of the Panchayat as directed by theCommissioner of Town and Country Planning. In the meantime, thepetitioner was called upon by the Member Secretary, MamallapuramLocal Planning Authority cum the Deputy Director of Town andCountry Planning to comply with the conditions stipulated in theplanning permit regarding execution of the gift deed. 2(b). Again, the petitioner has written to the secondrespondent to accept the gift against 'open space reservation',however, the second respondent has not taken steps. In thosecircumstances, the petitioner has approached the first respondent,District Collector on 16.09.2009 and 15.10.2009, to depute aperson of his choice to accept the gift on behalf of the Panchayatand strangely, there has been no reply. In these circumstances,the present writ petition is filed for direction as stated above.3. In the counter affidavit filed by the second respondentPanchayat President, while it is admitted that the Commissioner ofTown and Country Planning has granted permission on 11.08.2009,to the petitioner for construction of apartments and that thepetitioner has approached the second respondent for accepting thegift deed, it is stated that on perusal of the plan it was foundthat the approach road was shown as 60ft. road and the petitionerhas not produced any legal evidence for the same. It is statedthat the approach road to the Thaiyur village is only 27 feet andtherefore, the second respondent has written to the HighwaysDepartment to find out its correctness. It is stated that thepetitioner has not produced the copy of the sanctioned CMDA plan,and therefore, the second respondent has disputed the plansubmitted by the petitioner for approval to the competentauthority.3(a). It is stated that a complaint was made by thepetitioner to the Collector on 16.09.2009, the first respondentherein, who in turn sent a letter asking for explanation from thesecond respondent, who explained the reasons for not accepting the https://hcservices.ecourts.gov.in/hcservices/ gift and thereafter, the Collector has kept quiet and theCollector has not taken any steps. It is stated that the secondrespondent has requested the petitioner by letter dated28.10.2009, to produce the records submitted before theauthorities for approval of the plan. 3(b). It is also stated that when the second respondentapproached the Village Administrative Officer of Thaiyur village,he has given a statement that the approach road is only 27ft. roadand issued FMB Sketch along with a certificate. It is stated thatin the Panchayat board meeting held on 5.11.2009, it was decidedby majority that if correct plan is produced by the petitioner,the gift would be accepted and the reason given for not acceptingthe gift is that it does not contains the correct fact.4. A reference to the condition annexed to the approval dated11.08.2009 granted by the Commissioner of Town and CountryPlanning to the petitioner shows that approval has been given forconstruction of three blocks to the extent of 184 tenants. It isalso stated that as per the plan, the portions to be left out forpublic purposes are to be gifted to the concerned Panchayat. Itis based on the same, the petitioner has approached the secondrespondent to accept a portion by way of gift. In fact, based onthe letter by the petitioner, the second respondent has requestedthe petitioner to produce various records, including the siteplan, patta, etc., The petitioner has also enclosed the gift deedto be signed and accepted by the second respondent and even afterrepeated representations, the second respondent has not repliedanything except making the present statement in the counteraffidavit as stated above.5. Mr.N.R.Chandran, learned senior counsel appearing for thesecond respondent would submit that, the second respondent beingthe responsible Panchayat, is bound to see that the plan assanctioned by the Town and Country Planning Authorities isscrupulously followed. It is his submission that when the planapproved by the competent authority shows that the width of theroad should be 60 feet, the Divisional Engineer, Highways,Chengalpattu in his letter in Ku.No.4477/2009 EVA1 dated11.11.2009, has stated that as per the Village AdministrativeOfficer’s certificate the width of the road is 27 feet. Thecontents of the said letter are as follows:"nfhl;lg; bghwpahsh; (be) mYtyfk;. br';fy;gl;L/F/vz;/4477/2009/,tm/1-ehs; 11/11/2009bghUs;: br';fy;gl;L (be) nfhl;lk; - ija{h; https://hcservices.ecourts.gov.in/hcservices/ Cuhl;rpapy; brd;id - khky;yg[uk; rhiyapypUe;J ija{h; Cuhl;rp tHpahf fhahh;tiu bry;Yk; rhiyapd; mfyk; ePsk; mspj;jy; - bjhlh;ghf/ghh;it: 1/jiyth;. ija{h;. ija{h; Cuhl;rp foj ehs; 12/10/2009/ 2/,t;tYtyf F/vz;/4477/09/,tm-1 ehs; 12/10/2009 3/ cjtpf; nfhl;lg;bghwpahsh; (be) br';fy;gl;L f/vz;/785/09/,tm-1 ehs; 22/10/2009/ 4/,t;tYtyf F/vz;/4477/09/,tm-1 ehs; 27/10/2009/ 5/cjtpf; nfhl;lg; bghwpahsh; (be) br';fy;gl;L f/vz;/657/09/,tm/ehs; 09/11/2009////ghh;itapy; fhQqk; fojj;jpy; cjtpf;nfhl;lg; bghwpahsh; (be)br';fy;gl;L mth;fs; ghpe;Jiuapd;go ija{h; rhiy fpkP/0/0-2/0 tiu ,f;nfhl;l guhkhpg;gpy; cs;s khtl;l ,ju rhiyahFk;/ ,r;rhiyapd;mfyk; FMB tiuglj;jpd; goa[k;. fpuhk eph;thf mYtyh; rhd;wpjH;goa[k; 8/4kP (27mo) cs;ssJ vd bjhptpj;Jf; bfhs;fpnwd;/xk;/f/nyhfehjd;nfhl;lg;bghwpahsh; (be)br';fy;gl;L/6. On the other hand, in the letter produced by the learnedcounsel for the petitioner issued by the Assistant DivisionalEngineer, Highways, Chengalpattu Sub Division in the letterNo.12/2009/Supt. dated 15.06.2009, it is stated that the availableright of way is about 20 mts. The contents of the said letter areas follows:"Letter No.12/2009/Supt./Dated 15.06.2009Madam, Sub: Kanchipuram District – Chengalpattu Taluk, Thaiyur "B" Village – Thaiyur to Kayar Road – Road width details – Regarding. https://hcservices.ecourts.gov.in/hcservices/ Ref: Your letter dated 12.06.2009...Adverting to your letter cited it is informed thatthe Thaiyur Road from KM 0/0 – 2/0 is classified as"Other District Road" maintained in Chengalpattu Highwayssub division. This road branches from KM 37/4 of Chennai– Mamallapuram Road on right side.The existing carriage way is single lane. Butavailable Right of Way is about 20m throughout this road.Considering the future augmentation of traffic the Roadwill be widened to two lane carriageway.Sd/-xxxxxxxx Assistant Divisional Engineer(H) Chengalpattu Sub Division Chengalpattu."7. The Village Administrative Officer, Thaiyur village in acertificate dated 3.11.2009 has stated as follows:46ija{h;'B'3/1/2009rhd;Wfh";rpg[uk; khtl;lk; br';fy;gl;L tl;lk; 46 ija{h; 'B'fpuhkk;. g[y vz;/1351-1Vy; OMR rhiyapypUe;J fpis rhiyahfbr';fz;khy; rhiy bry;fpd;wJ/ g[y vz;/1351 -5V xl;odhw;nghy;me;j rhiyapd; mfyk; 8/4 kPl;lh; vd (27mo) FMB mst[go cs;sJvdr; rhd;wspf;fpd;nwd;/Sd/-xxxxxVillage Administrative OfficerNo.46, Thaiyur 'B' VillageChengalpattu Taluk."Indicating that the width of the road is 8.4 mt. (27 ft.) , thesecond respondent Panchayat has passed resolution on 5.11.2009 inthe following words:" To await for reply from the competent authorities andtherefore till such reply is received not to accept thegift."8. In the light of the dispute raised regarding the factualsituation about the width of the road as against the plan approvedby the Town and Country Planning Authorities and the secondrespondent has not decided to accept the gift only because of thefactual discrepancies stating that the road portion left out is https://hcservices.ecourts.gov.in/hcservices/ not in accordance with the approved plan, I am of the view thatthe writ petition should be disposed of with direction against thefirst respondent District Collector to depute one of his officialsto inspect the concerned place in Survey Nos.1351/3A and 1351/5Aof Thaiyur village with the help of the planning permit issued bythe Commissioner of Town and Country Planning, Chennai inNa.Ka.No.10236/2009 BA2 dated 11.08.2009 and ascertain as towhether the public places offered to be gifted under the planningpermit are in existence as per the measurements and file aphysical verification report to the second respondent with a copyto the petitioner within a period of four weeks from the date ofreceipt of copy of this order. It is made clear that while makingthe physical inspection, the first respondent may ask thepetitioner as well as the second respondent to be present. If themeasurements are in accordance the approved plan, on intimation bythe first respondent, the second respondent shall forthwith acceptthe gift presented by the petitioner. If the measurements are notin accordance with the approved plan, the petitioner shall takenecessary steps to prepare a correct plan and get it approved andthen approach the second respondent for accepting the gift.With the above directions, the writ petitions is disposed of.No costs. Connected miscellaneous petition is closed.Sd/Asst.Registrar/true copy/Sub Asst.RegistrarKhTo1.The CollectorKancheepuram DistrictKancheepuram.2.The PresidentThaiyur PanchayatThirupporur Panchayat UnionChengalpattu TalukKancheepuram District.+1cc to Govt. Pleader Sr 66018+1cc to Mr.R.Kannan, Advocate Sr 65847+1cc to Mr.M.Vaidyanathan, Advocate Sr 65816TS(CO)km/10.12.W.P.No.21765 of 2009