Velachery Vijay Nagar Welfare Association v. Chennai Metropolitan Development Authority

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 10.6.2008CORAM:THE HONOURABLE MR.JUSTICE P.K. MISRAANDTHE HONOURABLE MR.JUSTICE K.CHANDRUW. P. NO. 26573 OF 2007ANDM.P. NOS. 1 AND 2 OF 2007 Velachery Vijay Nagar Welfare Association(Registration No. 211/2007)Rep. by its General Secretary A. VeerappanNo.2, 19th Cross, Vijay NagarVelacheryChennai... Petitioner-vs- 1. Chennai Metropolitan Development AuthorityRep. by its Member SecretaryGandhi Irwin Road, EgmoreChennai.

The CommissionerCorporation of ChennaiRippon BuildingsChennai – 33. The Assistant CommissionerZone XCorporation of ChennaiAdyar, Chennai4.The Executive EngineerZone XCorporation of ChennaiAdyar, Chennai.5.A.R. Estates and Investmentsrep. by Mr. R.M.Venkatachalam13/31, 3rd Main RoadGandhi Nagar, Chennai. ... RespondentsPetition under Article 226 of the Constitution of India praying to issue a writ of Mandamus directing the respondents 1 to 4 to take https://hcservices.ecourts.gov.in/hcservices/ over such land required to connect the 2nd Main Road at Vijay Nagar, Velachery, through Survey No. 359 (Part) and lay and form a Roadenabling a continuous and uninterrupted running of the 2nd Main Road, commencing from the 1st Cross Road on the Eastern Side and the IrattaiPillaiyar Koil Road on the Western Side. For Petitioner : Mr. P.M. SubramaniamFor Respondent 1: Mr. I. ParanthamanFor Respondents 2-4 : Mr. T. Mathi, Spl. GPFor Respondent 5:M/s S. Ramasubramanian AssociatesORDERK. CHANDRU, J.Heard the arguments of Mr. P.M. Subramaniam, learned counsel appearing for the petitioner, Mr. I. Paranthaman, learned counsel appearing for the first respondent, Mr. T. Mathi, learned StandingCounsel representing the respondents 2 to 4 and M/s S.RamasubramanianAssociates, learned counsel appearing for the fifth respondent and perused the records. 2. This writ petition is filed by the Velachery Vijay NagarWelfare Association represented by its Secretary allegedly in public interest. The petitioner in the present writ petition seeks for adirection to the respondents 1 to 4 to take over the land in SurveyNo. 359 (Part) to connect the 2nd Main Road at Vijay Nagar, Velachery, and form a Road enabling a continuous and uninterrupted running of the 2nd Main Road, commencing from the 1st Cross Road on the EasternSide and the Irattai Pillaiyar Koil Road on the Western Side.

It is stated by the petitioner that the Vijay Nagar Lay out was formed and approved in the year 1969 is situated in Velachery. The Vijay Nagar lay out consists of 13 Main Roads and 6 Cross Roads. According to the petitioner, the second Main Road runs perpendicular to the Velachery Main Road. Because of the occupation of a part of Survey No. 359 (part), a bottleneck has been created and the SecondMain Road is not connected to the Main Road unlike the other Roads. Even though the residents are fighting for over 30 years, they are not able to get any relief. It is stated by the petitioner that they had petitioned to the authorities to form the road through various representations.

When the plot owners of Survey No. 359 (Part) filed a writ petition in W.P. No. 20546 of 1993 for grant of planning permission, some of the residents have got themselves impleaded in that writ petition and in view of the writ petition, they had withdrawn the suit in O.S. No. 8510 of 1991. This Court, by an order dated19.8.1999, directed the Commissioner, Corporation of Chennai to https://hcservices.ecourts.gov.in/hcservices/ consider the said issue. By a communication dated 02.02.2007, the Executive Engineer, fourth respondent, informed the ChennaiMetropolitan Development Authority [for short,'CMDA'] that the road abetting the site had not been taken over by the Chennai Corporationand the same was an unapproved lay out. On the strength of the same, the first respondent CMDA informed the Association that since the site in question, falls in an unauthorised lay out formed before 1989and as it abets the public road, it can be regularised and they were considering the issuance of planning permit. Accordingly, a planning permission was sanctioned in favour of the fifth respondent. Itis at this juncture, the present writ petition has been filed in public interest.

On 08.8.2007, this Court directed the Corporation to file reply in response to the writ petition. The second respondent has filed a counter affidavit dated 26.02.2008. A counter affidavit has also been filed by the fifth respondent in December 2007 along with the typed set of papers containing the history of previous civillitigations instituted by some of the residents of the said locality and who were the members of the petitioner Association.

It is seen from the typed set that one D. Chandrasekaranand six others filed a suit in O.S. No. 8510 of 1991 and sought for interim injunction in I.A. No. 20362 of 1992. The said application was dismissed by the XI Assistant Judge, City Civil Court, Chennairefusing to grant injunction against the Corporation. Against the said order, the said residents filed an appeal in C.M.A. No. 84 of1992. After contest between the parties, the said C.M.A. was dismissed by the lower appellate Court vide judgment dated03.02.1993. Thereafter, the suit was dismissed by the XII AssistantJudge, City Civil Court on 09.02.1996 as not pressed. No liberty was sought for filing any fresh case. In the counter affidavit filed by the fifth respondent, it was stated that the first plaintiff D.Chandrasekaran was a member of the petitioner society and having espoused the same cause earlier, they cannot start all over again another litigation. It was also stated that the present writ petition was not certainly in public interest.

With reference to the ownership of the land in Survey No.359 (Part), it is averred in paragraphs 5 to 7 in the counteraffidavit as follows:-"5. The said lands in Survey No. 359 originally belonged to one Mr. P.T. Seshadri Iyengar and Mt. P.T.Srinivasa Iyengar. The said property was then partitioned in the year 1973 between Mr. P.T.Srinivasan, Mrs. Pattammal and Mrs. P.T.Rukmini. Bythis partition, Mr.P.T.Srinivasan came to acquire title of 2 acres 62 cents of wet lands in Survey No. 359apart from various other properties. The said wet https://hcservices.ecourts.gov.in/hcservices/ agricultural lands admeasuring 2 acres and 62 cents in survey No. 359 at Velacherry Village is now the subject matter in the present writ petition. Mr. P.T.Srinivasan sold 41 cents out of 2 acres and 62 cents to seven individuals. The seven individuals then partitioned the 41 cents among themselves under aPartition Deed dated 08.10.1982 registered as documentNo. 3842 at the office of the Joint Sub-Registrar II,Saidapet.6.33 cents from out of 2 acres and 62 cents were then sold to another four individuals who then vide Partition Deed dt. 04.01.1983 registered as documentNo. 16 of 82 at the Joint Sub-Registrar II's Office, Saidapet, partitioned the 33 cents among themselves. Similarly 24 cents were sold to another three individuals who then partitioned the property amongstthemsevles vide Partition Deed dt. 23rd October 1983registered as document No. 4067 of 82 at the office of the Joint Sub-Registrar II, Saidapet. Similar sales were effected subsequently and finally the 5thRespondent herein purchased the said property by virtue of multiple sale deeds registered on various dates. 7. Long prior to the 5th Respondent acquiring the said plots, even on 09.6.1989 the owners of the property viz. 13 in all executed a Gift Deed registered as document No. 841 of 89 by which 13 cents of Roadarea was gifted to the Corporation of Madras. Theowners also paid development charges in respect of the land gifted to the Corporation of Chennai. Thesewere in the context of and in furtherance of the application to the Respondents for grant of approval of their lay out in Survey No. 359."

The second respondent Commissioner, Corporation of Chennaialso refuted the stand taken by the petitioner Association vide his counter dated 16.02.2008. It is appropriate to refer to paragraphs10 and 14 of the said counter, which read as follows:-"10.I state that the layout No. 12/69 and 54/73 was approved respectively in the year 1969 & 1973 and forS. No. 359 approval was not granted and it is anunapproved one. Further in S. No. 359 unapprovedplots were formed before 31.12.89. Hence, link between eastern side and western side of Vijaya Nagar 2nd MainRoad is not possible and cul-de-sac rule is not applicable in this case. ""14.I further state that the building plan sanctioned https://hcservices.ecourts.gov.in/hcservices/ by the 2nd respondent was based on the CCMC Act, 1919as well as and rules in force. I state that, the contention raised by the petitioner in para 15 is incorrect, 24 feet wide Road under the maintenance of Corporation of Chennai without any encroachment and further it is contrary to say that all 13 Roads and 6Cross Roads continually connect end to end. Whereasonly 4 Main Roads are connected to Velacherry –Tambaram Main Road. "

After the judgment was reserved, the learned counsel for the petitioner also circulated a written notes of submission on16.4.2008. In that notes of submission, the very same contentions were raised by the petitioner. Even by the factual matrix set out above, we do not feel persuaded to accede to the request made by the petitioner and this is not a fit case to be entertained as a PublicInterest Litigation.

In this regard, it is relevant to refer to the decision of the Supreme Court in Ashok Kumar Pandey v. State of W.B. [2004 (3)SCC 349]. Speaking for the Bench, Dr. Arijit Pasayat, J., in paragraph 10 observed as follows:-Para 12:"Public interest litigation is a weapon which has to beused with great care and circumspection and the judiciary has to be extremely careful to see that behind the beautiful veil of public interest an ugly private malice, vested interest and/or publicity-seeking is not lurking. It is to be used as aneffective weapon in the armoury of law for delivering social justice to citizens. The attractive brand name of public interest litigation should not be used for suspicious products of mischief. It should be aimed atredressal of genuine public wrong or public injury and not publicity-oriented or founded on personal vendetta. As indicated above, court must be careful to see that abody of persons or a member of the public, who approaches the court is acting bona fide and not for personal gain or private motive or political motivation or other oblique consideration. The court must not allow its process to be abused for oblique considerations. Some persons with vested interest indulge in the pastime of meddling with judicial process either by force of habit or from improper motives. Often they are actuated by a desire to win notoriety or cheap popularity. The petitions of such busybodies deserve to be thrown out by rejection at the threshold, and in appropriate cases, with exemplary costs. " https://hcservices.ecourts.gov.in/hcservices/

10. In the light of the above, the writ petition is devoid of merits and accordingly, will stand dismissed. However, there will be no order as to costs. Connected Miscellaneous Petitions will stand closed. Sd/-Assistant Registrar/true copy/Sub Assistant RegistrargriTo1.Chennai Metropolitan Development AuthorityRep. by its Member SecretaryGandhi Irwin RoadEgmore, Chennai. 2. The CommissionerCorporation of ChennaiRippon BuildingsChennai – 33. The Assistant CommissionerZone XCorporation of ChennaiAdyar, Chennai4.The Executive EngineerZone XCorporation of ChennaiAdyar, Chennai.+ 1 cc to Mr.S.Ramasubramaniam Advocate SR No.28362+ 1 cc to Mr.Mathi, Advocate SR No.28816+ 1 cc to Mr.I.Paranthaman, Advocate SR No.28711Pre-Delivery Order inW. P. No. 26573 of 2007KJ(CO)JJM(18.06.08)