(Prayer: Writ Petition filed under Article 226 of the Constitution of India praying for issuance of Writ of Mandamus directing the Respondents herein to dispose the Petitioners representation made on 31.01.2018 and not to remove or demolish 6' inches from the existing concrete column of 12 x 12 inches pillar situates in the southern side of the built up area of the Petitioners building comprised in Survey No.253/5, at Door No.44, Velachery Main Road, Pallikaranai, Chennai 600 100.)
M. Venugopal, J.
1. Heard both sides.
2. Counter of the 4th Respondent is filed.
3. According to the Petitioner, he is the absolute owner of the property comprised in Survey No.253/5 at Door No.44, Velachery Main Road, Pallikaranai, Chennai 600 100 measuring an extent of 4,500 sq. ft. having purchased from one Sarangapani by means of a registered Sale Deed dated 09.03.1987 on the file of the Sub Registrar Office, Chennai South.
2. It is represented on behalf of the Petitioner that the Petitioner after purchasing the aforesaid property with a view to promote commercial sho
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ps measuring an extent of 832 sq.ft. had approached the M.M.D.A. seeking Planning Permission for construction. Further, the said authority had suggested to secure No Objection Certificate from the Revenue Authority as to whether the property is an encroachment to the road. After an inspection being conducted by the Special Tahsildar belonging to the State Highways Department, No Objection Certificate dated 21.06.1988 was issued and also the Commissioner of Panchayat Union, St.Thomas Mount by means of proceedings of the approved plan dated 21.08.1988 in Rc.No.6376/89/A4/-8-89 and the planning permission S.No.253/5 and thereafter the M.M.D.A. had sanctioned a plan order dated 05.06.1989 in Letter No.D.DIS A./14622/1988 for construction of the commercial shops and based on the said approved plan, the Petitioner had constructed RCC building of four shops in ground floor and four shops in first floor measuring a total extent of 832 sq.ft. Moreover, there was a vacant area in the front portion of the building which is more than 70 feet and the same was utilised by the pavements.
3. The clear-cut stand taken on behalf of the Petitioner is that after completion of construction, the authorities from the Highways Department and Revenue Department inspected the constructed area and found that there is no encroachment or deviation and hence, the Petitioner in no way had encroached or violated in any manner.
4. At this stage, the Learned Counsel for the Petitioner submits that earlier the Velachery Main Road towards Pallikaranai, Tambaram was only 30 feet Road, but the Respondents had analysed and proposed a project for widening the Velachery Main Road till Tambaram from 30 feet to 75 feet Road and earmarked the area for Land Acquisition and also issued notice to the Encroachers, however, as on date, no notice was issued to the Petitioner and no marking was made in his building.
5. The Learned Counsel for the Petitioner proceeds to point out that the 4th Respondent, while widening the State Highways Road, is also constructed the rain water pitch, where 6 inches of the concrete column pillar situates in the southern side of the building obstructs the rain water pitch and therefore, the Respondents had instructed the Petitioner to remove the 6 inches concrete column pillar which is the vital pillar supports the entire built up area of 1664 sq.ft. inclusive of ground and first floors. However, the 4th Respondent instead of mentioning that the nature of ongoing project had informed that the 6 inches of the pillar is obstructing the widening of the road which is an incorrect one.
6. The Learned Counsel for the Petitioner strenuously contends that on 29.01.2018 all of a sudden the Respondents came to the Petitioner's property and orally insisted to remove 6' inches from the existing concrete column 12 x 12 inches pillar which is supporting the southern side of the entire building and hence, the Petitioner produced all records relating to the property and the Respondents after perusing the documents, suspended their work. The apprehension of the Petitioner is that the Respondents may initiate action in demolishing or removing the 6' inches from the existing concrete column 12 X 12 inches pillar supporting the entire building and made a representation dated 31.01.2018 to the Respondents to consider this aspect etc.
7. The prime plea taken on behalf of the Petitioner is that the act of the 4th Respondent is an unfair and unconstitutional one even if the Respondents want to construct the rain water pitch adjoining the widening of State Highways Road, there is every possibility of proceeding with the ongoing project without removal or demolish 6' inches from the existing concrete column 12 X 12 inches pillar situates on the southern side of the building. Therefore, the Petitioner had sought a relief in the present Writ Petition in issuance of direction to dispose of his representation dated 31.01.2018 and also made a request that the authorities shall not remove or demolish 6' inches from the existing concrete column 12 X 12 inches pillar situates in the southern side of the built up area of the Petitioners building comprised in Survey No.253/5 at Door No.44, Velachery Main Road, Pallikaranai, Chennai – 600 100.
8. Conversely, it is the submission of the Learned Special Government Pleader for Respondents 1 to 4 that the land measuring an extent of 8.96.5 hectares in Survey No.253/5 at Pallikaranai Village, Sholinganallur Taluk, Kancheepuram District is classified as 'Government land village site (Grama Natham)' which is ascertained from the Revenue Records (as per Adangal Extract). Furthermore, it is represented on behalf of the Respondents that 'Gramanatham' is purely for a residential purpose and the same vested with the Government Revenue Department (Local Panchayat), they are being allotted for commercial purpose for rent to the concerned persons who had consented to run business on contract basis for certain stipulated period. In substance, it is the stand of the Respondents that 'No one can claim rights over the land vested with the Government' even though one may possess a documentary evidence in this regard.
9. The Learned Special Government Pleader for Respondents 1 to 4 brings it to the notice of this Court that the Government had sanctioned in G.O.Ms.No.108, Highways and Minor Ports (HF2) Department, dated 12.09.2014, for widening of existing road Marmalong Bridge Road (Velachery – Tambaram Road) four way into six way along with construction of drain, providing Bus bay etc. and improvements works will be carried out within the Row of 45m i.e. 150 feet as per the norms prescribed by the CMDA in its developmental regulations of Master Plan II. Moreover, the Necessary Land Plan Schedule had already submitted to the District Collector, Kancheepuram to acquire the Patta lands under the Tamil Nadu Highways Act, 2001 and the alienation of Government lands.
10. The contention of the Respondents is that the Petitioner had constructed a commercial building comprises few shops in ground, first floor and a party hall in the second floor. In reality, the Chennai Metropolitan Development Authority mandates a setback distance of 6m apart from the street alignment of 45m for this road, for any building especially for buildings that involve commercial activities. Also that, the other encroachments identified along with the road were cleared by themselves from Highways ROW, in the interest of public. In fact, the Petitioner's building is in skewed position with respect to the alignment of the road. One half of the building is located within the ROW of Highways Department which have to be cleared to proceed with the further developmental activities. The Petitioner had not left any setback distance and because of that parking of vehicles for this commercial complex by the road side would definitely lead to traffic chaos and congestion. There is no parking space in this commercial complex of the Petitioner's building.
11. The Learned Special Government Pleader for Respondents 1 to 4 points out that the Strom Water Drain was constructed up to the property located prior to Petitioner's building and after this building, the work was stopped because of this encroachments and representations were received to maintain a uniform alignment in construction of Strom Water Drain in this stretch. Any deviation in the alignment even for a lesser width would affect developmental activities and also attract severe public criticism. The work was sanctioned before two years and because of the encroachments, it is getting delayed.
12. Since the Petitioner's representation dated 13.01.2018 addressed to the Respondents 1 to 4 had not met with any positive response, he had approached this Court by filing the present Writ of Mandamus seeking for issuance of direction to dispose of his representation.
13. In this connection, the Respondents had taken a clear-cut stand before this Court that the Petitioner had constructed a commercial building comprising of few shops in ground floor, first floor and a party hall in the second floor etc. and since the Petitioner had not left the setback distance of 6m which is a mandatory one as per stipulation of CMDA and also that the parking of vehicles for the commercial complex of the Petitioner's building by the road side would definitely lead to traffic chaos and congestion and this Court, taking note of yet another primordial fact that there is no parking space in that commercial complex of the Petitioner and because of the encroachments made by the Petitioner, the work has come to standstill etc., this Court comes to an inevitable conclusion that the Petitioner is not entitled to seek the relief as sought for by him in his representation. Inasmuch as the Petitioner has taken a plea in his Writ Petition that there is no encroachment or deviation and therefore, he had not violated any of the Rules and Regulations, it is upto the 4th Respondent to take a final call in the subject matter in issue, by providing an opportunity to the Petitioner to put forth his views and to produce necessary documentary evidence in support of his claim, if he so desires/so advised. Thereafter, the 4th Respondent shall take a final decision and in case, if the Petitioner is found to be an 'Encroacher' or a person having violated any of the existing Rules and Regulations, then, the 4th Respondent is at liberty to take lawful logical action to its end so that the development activities in the subject matter in issue will not get stifled or blocked. Considering the fact that the work in question was sanctioned well before two years i.e. in the year 2016 and the same getting delayed because of the encroachments alleged to be made by the Petitioner.
14. With the aforesaid observations and directions, the Writ Petition is disposed of. No costs. Consequently, connected Miscellaneous Petition is also closed.