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Madurai Central Market Vegetables Perishable Commodities Merchants Co-ordination Association, Madurai, rep. by its President, S. Manuel Jeyaraj v/s The Vilangudi Panchayat Union, rep. by its Executive Officer & Another

    W.A.(M.D) No.1505 of 2011
    Decided On, 23 April 2012
    At, Before the Madurai Bench of Madras High Court
    By, THE HONOURABLE MRS. JUSTICE R. BANUMATHI & THE HONOURABLE MR. JUSTICE B. RAJENDRAN
    For the Appellant: M. Ajmal Khan, Advocate. For the Respondents: R1 - M. Govindan, Spl. Government Pleader, R2 - G.R. Swaminathan, Advocate.


Judgment Text
(Prayer: Writ Appeal filed under Clause 15 of Letters Patent against the order dated 31.10.2011 made in W.P.(MD)No.3958 of 2010 on the file of this Court.)

R.BANUMATHI,J

1. Being aggrieved by the dismissal of Writ Petition in W.P.(MD) No.3958 of 2010 (dated 31.10.2011), Appellant - Madurai Central Market Vegetables Perishable Commodities Merchants Co-ordination Association, Madurai has preferred this Intra-Court appeal.

2. The members of the Appellant were carrying on their business in the heart of Madurai City. Since it was found to be a very congested place, they decided to shift the market to a location out side the City, they purchased land in R.S.Nos.115, 116/1 and 116/2 at Vilangudi Paravai village from(1) S.Ramasamy, (2) S.Muthukaruppan; and (3) S.Palaniappan and M.C.N.Manickam. For the purpose of putting up necessary constructions, Appellant Association approached the 1st Respondent - Vilangudi Panchayat Union for approval of layout. By its Proceedings Na.Ka.No.46/2005 dated 12.03.2008, 1st Respondent granted approval subject to certain conditions appended thereto. According to the stipulation contained therein, Appellant Association was required to donate all 60 feet and 40 feet roads leading to open spaces shown in the plan approval to the local Panchayat. According to Appellant, by the Document Nos.458 dated 06.02.2008 and 959 dated 19.02.2008, the roads were donated/transferred to Vilangudi Panchayat. According to Appellant 60 feet road running in the middle of the layout and some portion of 40 feet road were not donated since they do not lead to the open spaces.

3. 2nd Respondent also purchased the property in R.S.No.116/2 - 50 cents from (1) S.Ramasamy, (2) S.Muthukaruppan; and (3) S.Palaniappan, sons of Sethuraman Chettiar and M.C.N.Manickam within the stated boundaries under Sale deed dated 16.09.2005. According to 2nd Respondent, he has got right to use 60 feet road to reach his lands and since the said 60 feet road has not been donated by the Appellant Association, it has become difficult for him to have access to his lands. In this regard, the 2nd Respondent has earlier filed a Public Interest Litigation (W.P.(MD) No.1639 of 2009) seeking direction to the 1st Respondent to consider his representation dated 11.02.2009.

4. In the said Writ Petition in W.P.(MD) No.1639 of 2009, Appellant Association got themselves impleaded as Respondents. After hearing the parties, by the order dated 04.11.2009, the Division Bench of this Court directed the 1st Respondent to consider the representation of the 2nd Respondent after affording sufficient opportunity to the Appellant Association, Local Authority and other parties interested. Division Bench also interaliadirected the 1st Respondent to decide as to whether the said 60 feet road in question should be donated by the Appellant to the 1st Respondent or not. The order of the Division Bench dated 04.11.2009 reads as under:-

"12.) Having regard to all the above facts, we are of the view that the only relief which could be granted to the petitioner is to direct the 1st respondent to consider the representation of the petitioner, dated 11.2.2009, and then to proceed further in accordance with law. While doing so, the 1st respondent shall afford sufficient opportunity to the 2nd respondent, the Local Planning Authority, the petitioner and other interested parties. The 1st respondent shall decide whether 60 ft. road in question should be donated by the 2nd respondent to the 1st respondent or not, based on his specific finding to be given on this issue, and then proceed further in accordance with law."

5. Thereafter, the 1st Respondent issued the communication dated 05.03.2010 stating that the public are unable to proceed to the southern side and calling upon the Appellant Association to hand over pathway to the Panchayat failing which, further action would be taken in accordance with the provisions of Tamil Nadu District Municipalities Act.

6. Challenging the said notice dated 05.03.2010 in Na.Ka.No.146/2005, the Appellant Association filed Writ Petition in W.P.(MD) No.3958 of 2010 seeking to quash the same as illegal. Rejecting the contention of the Appellant, the learned single Judge dismissed the Writ Petition holding that the plot purchased by the 2nd Respondent in the lay out lies in the southern side of the Appellant's layout and that the 2nd Respondent's access is shown through 60 feet road in the layout approved and the Appellant cannot plead ignorance. The findings of the learned single Judge are: -

In the Proceedings of the 1st Respondent dated 12.03.2008 approving the layout to the Appellant Association, condition is stipulated to donate 60 feet and 40 feet roads leading to Open Space Reservation.

Insofar as non-affording of opportunity, learned Judge held that when in the approved layout the existence of road is very clear. on the ground that formality of enquiry was not gone through, the order cannot be quashed.

Plot lying on the southern side of approved layout was purchased by the 2nd Respondent with the knowledge of the person/President of Appellant Association. In the layout approved on the southern side access is shown through 60 feet road.

7. Mr.M.Ajmal Khan, learned counsel for Appellant contended that learned Judge ought to have seen that the Division Bench by its order dated 04.11.2009 in W.P.(MD) No.1639 of 2009 had specifically directed the 1st Respondent to hold an enquiry, giving sufficient opportunity to the Appellant Association, Local Planning Authority and interested parties and also to give a specific finding as to whether 60 feet road in question should be donated to the 1st Respondent or not. It was further submitted that without following the mandate of the Court, the Division Bench in W.P.(MD) No.1639 of 2009, order came to the passed by the 1st Respondent and the same is vitiated for non-affording of opportunity. It was also contended that the learned Judge ought to have seen that the impugned Proceedings in Na.Ka.No.146/2005 dated 05.03.2010 has been passed without affording any opportunity to the Appellant Association is in violation of principles of natural justice. It was further argued that when the Division Bench had specifically directed the 1st Respondent to conduct an enquiry, giving opportunity to all interested parties, the learned Judge ought not to have substituted the enquiry by the Court which was required to be conducted by the 1st Respondent.

8. We have heard Mr.M.Govindan, learned Special Government Pleader for 1st Respondent.

9. Mr.G.R.Swaminathan, learned counsel for 2nd Respondent contneded that as per the sale deed dated 16.09.2005, 2nd Respondent had been given right to use the road in question and in the said sale deed the President of Appellant Association himself is the attestor and while so, Appellant Association cannot deprive the 2nd Respondent of having access through 60 feet road.

10. Commissioner for Town Planning granted approval for the layout of the Appellant Association. As per the conditions stipulated in the Proceedings of the Commissioner for Town Planning, Chennai in Na.Ka.No.22779/2007BA1 dated 26.11.2007, all the roads leading to Open Space Reservation are to be donated to the local panchayat. Condition No.10 reads as under:-

'TAMIL'

Infurtherenceof the above, the 1st Respondent in its Proceedings in Na.Ka.No.146/2005 dated 12.03.2008 reiterated the same condition which reads as under:-

'TAMIL'

11. Contention of Appellant Association is that the roads fall under two different panchayats and that Appellant Association had transferred the same to the respective panchayats by the registered deeds. According to Appellant Association, as per the conditions stipulated in the above Proceedings, all 60 x 40 feet roads leading to open space shown in the plan were transferred infavour of the respective panchayats vide Document Nos.2060 dated 13.02.2004, 2098 dated 15.12.2004, 66 dated 17.01.2005 to Paravai Panchayat and Document Nos.458 dated 06.2.2008 and 959 dated 19.02.2008 to Vilangudi Panchayat.

12. Learned counsel for Appellant Association contended that 60 feet road in question is meant for internal use of the Association and does not lead to any Open Space Reservation and therefore, there is no necessity to donate 60 feet road to the 1st Respondent – Panchayat. Drawing our attention to the approved layout, learned counsel for Appellant Association further contended that 60 feet road in question is in the middle of layout which does not lead to any Open Space Reservation and therefore, there is no necessity to hand over 60 feet road in question to the 1st Respondent - Panchayat. It was therefore contended that had opportunity been given to the Appellant Association, the Appellant Association would have been in a position to establish its stand before the 1st Respondent.

13. Learned counsel for 2nd Respondent contended in the approved layout plan existence of 60 feet is very obvious and as per the conditions stipulated, any enquiry by the 1st Respondent would have served no purpose. It was further argued that the learned Judge had perused the approved layout plan and therefore, Appellant cannot complain of violation of principles of natural justice.

14. By perusal of the order in the Writ Petition, it is seen that the learned Judge had gone through the layout plan and observed that the existence of 60 feet road is so obvious in the approved layout. Learned Judge was quite conscious that as per the direction of the Division Bench in W.P.(MD) No.1639 of 2009, 1st Respondent has not afforded opportunity to the Appellant Association. However, referring to the layout plan, learned Judge observed that 'what is so clear from the approved layout cannot be over looked on the ground that formality of enquiry was not gone through'.

15. As pointed out earlier, contention of Appellant is that as per the conditions stipulated in the Proceedings of the Commissioner for Town Planning, Chennai in Na.Ka.No.22779/2007/BA1 dated 26.11.2007 and Proceedings of the Executive Officer, Vilangudi Town Panchayat in Na.Ka.No.146/2005 dated 12.03.2008, Appellant Association had already executed the documents donating the roads leading to Open Space Reservation. Main contention of Appellant Association is that 60 feet road lying in the middle of the layout does not lead to Open Space Reservation and therefore, there is no necessity to donate the same to the 1st Respondent. Appellant Association has thus raised serious contention regarding 60 feet road whether to be donated or not. Any order thereon will have serious consequences. In such circumstances, it cannot be said that even if hearing was not afforded to the Appellant, Appellant Association is not affected in any manner.

16. Concept of principles of natural justice has undergone a great deal of change in recent years. Adherence to principles of natural justice will hold good irrespective of whether the order is passed by Statutory Body or Tribunal or Administrative Authority or Quasi-Judicial Body. [Vide (2005) 6 SCC 321 (Canara Bank v. V.K.Awasthy)]

17. It is well settled that even the administrative order or decision involving civil consequences has to be consistent with natural justice. Every Authority or Quasi-Judicial Authority or Administrative Authority or Executive should act fairly, reasonably and in a just manner in accordance with the principles of natural justice, when resolved exercise of power is likely to affect any person or visit him with civil consequences.

18. In the light of the dispute raised by the App

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ellant Association, any order passed by the 1st Respondent regarding vesting of 60 feet road with Vilangudi Panchayat will have civil consequences. While so, as directed by the Division Bench of this Court earlier, 1st Respondent ought to have afforded sufficient opportunity to the Appellant Association to putforth its case. 1st Respondent did not keep in view the specific direction of the Division Bench in W.P.(MD) No.1639 of 2009 dated 04.11.2009. The Proceedings of the 1st Respondent in Na.Ka.No.146/2005 dated 05.03.2010 is in violation of earlier direction of the Division Bench in W.P. (MD) No.1639 of 2009 dated 04.11.2009 and therefore cannot be sustained. 19. In the result, the order of the learned Judge in W.P.(MD) No.3958 of 2010 is set aside and this appeal is allowed. The matter is remitted back to the 1st Respondent. 1st Respondent is directed (i) to afford sufficient opportunity to the Appellant Association, 2nd Respondent-Meyyappan, Local Planning Authority and other interested parties; (ii) to decide whether 60 feet road in question should be donated by the 2nd Respondent to the 1st Respondent or not and to record a specific finding on this issue and to act in accordance with law. Consequently, connected M.P. is closed. There is no order as to costs in this appeal.
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