(Prayer:- Petition filed under Article 226 of the Constitution of India praying for the issuance of a Writ of Mandamus directing the 3rd respondents herein to physically demarcate the extent of 6600 sq.ft. as per the registered sale deed executed by the 3rd respondent vide sale deed dated 27.04.2006 registered as document no.804 of 2006 before the Sub-Registrar, Saidapet or in the alternative direct the respondents herein to allot a plot in favour of the petitioners in any of the approved layouts developed by the 3rd respondent society commensurate to the petitioners vide sale deed dated 27.04.2006 registered as document No.804 of 2006 on the file of the Sub-Registrar, Saidapet.)
1. The two petitioners before me are mother-in-law and daughter-in-law respectively and are members in a co-operative society, the Chennai Metropolitan Co-operative Housing Ltd. arrayed as 3rd respondent (hereinafter referred to as ‘R3’). They were allotted a site in a development called ‘Millennium Town’ of an extent of 6,600 sq.ft (in short ‘property in question’) and have remitted the entire sale consideration of Rs.10,80,000/- in that regard. The Sale Deed has been executed on 27.04.2006.
2. Thereafter, the petitioners wished to effect construction upon the property and applied for patta before the 4th respondent, Tahsildar at Madurvayal, on 06.02.2015. The Tahsildar submitted a report relating to the sub-division of the property in question and issuance of patta. No action was taken by him thereafter constraining the petitioners to approach this Court in WP.No.22023 of 2016.
3. Vide order dated 27.06.2016, the Tahsildar was directed to consider and pass orders on the representation of the petitioner for issuance of patta within a period of eight (8) weeks. Since there was still silence on the part of the Tahsildar, information was sought under Right to Information Act, 2005 and the petitioner came to know that there was no land available as per the schedule to the sale deed. Only 22 sq.ft of land was available instead of 6,600 sq.ft. as per the deed for which they had paid valuable consideration.
4. The petitioner states that at the time of purchase they were shown/indicated the extent of land that they had been sold and were thus, under the bona fide impression that the sale was a valid sale. Even as per the approved plan of the CMDA for the Development of the Millennium Town, the vacant land site purchased by the petitioners was shown to be admeasuring 6,600 sq.ft. It is in the aforesaid circumstances that the petitioners are before this Court seeking a mandamus directing the 3rd respondent to physically demarcate 6,600 sq.ft land sold under sale deed dated 27.04.2006 to the petitioners or in the alternative direct the petitioners to allot an alternate plot of commensurate measurement or value for the consideration received under sale deed dated 27.04.2006.
5. A counter has been filed by the CMDA, arrayed as R2. R2 states that planning permission was sought for the proposed layout of house sites at Villivakkam Panchayat Union and Thiruverkadu Municipal in 2001. The layout of land allotted covered an extent of 30.19 acres at Adayalampattu Village and 4.94 acres in Ayanambakkam Village. 374 plots were proposed out of which six were shops sites, five (5) convenience shop sites, 37 public purpose plots, road area admeasured 40,227 sq.m. and park area admeasured 10,280 sq.m. The role of the CMDA came to a close thereafter and it has nothing further to do with the transaction in question. The CMDA specifically denies that the approved layout contained any detail or demarcation regarding any plots or shop sites, including the petitioners’. The CMDA has this to state in counter, in regard to the dimensions of the layout approved by it for the purposes of the project:
‘4. M/s.Chennai Metropolitan Co-operative Housing Society Limited earlier applied for Planning Permission for the proposed layout of house sites in S.Nos.43/1 Part, 44/1 & 2 Part, 45, 46, 47, 48/1, 49, 50, 51, 56, 57, 58/1 & 2, 74/1, 75/2, 76 and 105/2 Part & 8 Part of Adayalampattu Village, Villivakkam Panchayat Union limit and in Survey Nos.87/3A & 3B and 88/1 & 2 of Ayanambakkam Villae, Thiruverkadu Municipal limit in the year 2001, which was forwarded by the Commissioner, Villivakkam Pachayat Union in Lr.Rc.No.1143/2001/A3 dated 04.04.2001
5. The layout proposal was examined in detail and the applicant was advised to remit the requisite charges as demanded vide Receipt No.1985 dated 19.10.2001. Skeleton plan was sent to concerned local bodies for handling over of roads and parks vide this office Lr.No.L1/16576/2001 dated 17.10.2001. A Gift Deed for handing over of roads and park space registered as document No.1606/2001 dated 23.11.2001 was forwarded by the Commissioner, Villivakkam Panchayat Union vide letter No.4281/2001/A3 dated 12.12.2001 and Gift Deed Document No.5906/2001 dated 30.11.2001 was received from the Executive Officer, Thiruverkadu Special grade Town Panchayat vide Lr.No.543/2001 dated 31.12.2001. The final layout plans were numbered as PPD/LO No.5A & 5B/2002 and forwarded to the concerned local bodies (ie) the Commissioner, Villivakkam Panchyat Union and the Eexecutive Officer, Thiruverkadu Special grade Town Panchyat vide this officer Lr.No.L1/202/2002 dated 05.02.2002. The layout covering an extent of 30.19 Acres (1,22,170 sq.m) lies in Adayalampattu Village and 4.94 Acres (19991 sq.m) lies in Ayanambakkam Village. Total number of plots proposed in the overall layout is 374 numbers. Shop site is 6 numbers. Convenient Shop site is 5 Nos. Public purpose plot is 37 numbers (I to XXXVII), in all working out to 10376 sq.m Rpad area measures 40227 sq.m and the park area measures to 10280 sq.m.
6. In summary, according to the CMDA, it is only the 3rd and 4th respondents who are to answer the allegations of the petitioners.
7. A preliminary objection is raised by R3 to the effect that the writ petition is not maintainable against it, seeing as it is a co-operative society. Reliance is placed on the decision of the Full Bench of this Court in the case of R.Marappan vs. Deputy Registrar of Co-operative Societies and another (2006(4) CTC 689). Per contra, the petitioner relies on the amendment to the Constitution of India by the Constitution (97th Amendment) Act 2011 w.e.f. 15.02.2012 whereby co-operative societies have been granted constitutional status. A Division Bench of this court in the case of N.Ramaswamy vs Registrar of Housing Societies (Housing) and three others, in W.P.(MD) No.1581 of 2018), by order dated 05.12.2018 has, while taking note of the aforesaid amendment, concluded that writ petitions against co-operative societies are now maintainable and the decision of the Full Bench in Marappans’ case (supra) now stands overridden. In the light of the aforesaid position, the preliminary objection is rejected.
8. Moving on to the merits, the 3rd respondent, while confirming the basic facts in relation to the transaction of sale, places all burden at the door step of the petitioner. According to R3, all records in regard to the site in question had been handed over to the petitioners as early as in 2006. However, the petitioner has approached the Tahsildar for patta only in 2015. Moreover, no action had been taken by them to protect and secure the property in question.
9. According to R3, the allegation that only 27 (22 as per writ petition) sq.ft of land is available is incorrect. In any event, the transaction had been entered into by the petitioners with open eyes and there could not be any allegation against R3. The allegation that only 22 sq.ft is available is denied as false as, according to the records and the approval plan, extent of 6,600 sq.ft was available for allotment and had, in fact, been allotted. R3 emphasises that the society had concluded the transaction after due legal verification of all relevant documents. The gifting of area to local bodies was done after primary approvals had been obtained from competent authorities. Pile stones were erected to mark the boundaries of the property after due survey of the entire property in question. Thus the arguments advanced by R3, the contesting respondent are that (i) the allegation that as against 6,600 sq.ft only 22 sq.ft is available is factually incorrect and (ii) that there has been considerable delay on the part of the petitioners in approaching this Court.
10. The 3rd respondent also filed a tabulation of the total plots available in the site and a total extent of land used by it in the project. The sum total of the plots utilizes 1,94,406 sq.ft which is 4 acres 45 cents. Roads take up another 74066 sq.ft. The total is, as per documents, 5.95 acres whereas, the project on ground, taking into account the utilization of plots and roads is 6 acres and 15 cents. Thus, even according to the measurements filed by R3, the project in question has utilized nearly 20 cents in excess of the land in its possession. This tabulation, I reiterate and emphasise, has been filed by R3 at pages 3 to 5 of its document compilation dated 30.07.2018, and is an admitted document. I must also state that there is no match as regards the dimensions of the property developed, as submitted by the 2nd and 3rd respondents and the figures, (set out in paragraphs 5 and 10 of this order) do not tally. However, in so far as we are concerned with the land available and in the possession of the 3rd respondent society, I proceed on the basis of the tabulation offered by it, in this regard.
11. R3 also raises another argument. It states, at paragraph 16 of the counter and thereafter, that if at all there was any shortfall in the extent of the property in question, it would be by virtue of encroachments by occupants in neighbouring survey numbers and is not a fault of R3. This is a direct consequence of the laxity and carelessness displayed by the Petitioners in not securing their property, by building a wall or fence to protect it.
12. The Tahsildar, R4, corroborates, in counter, the facts presented by the petitioner in regard to the measurements of the plot in question. R4, in compliance of the order of this court directing him to dispose the representation of the petitioner for issuance of patta, had undertaken a survey and measurement of the property. The findings of the Tahsildhar as set out in his counter are extracted below for the sake of clarity:
‘4. It is submitted that the Respondent to pass an order for issuing patta, the land in issue was measured by Surveyor of Maduravoyal Taluk. During the measurement it was found that there is 22 sq.mt. of land only. There is no extent of land as mentioned in the registered document or as stated in the CMDA approved layout developed by Chennai Metropolitan Co-operative Housing Society Ltd.,
5. It is submitted that the petitioner sought for information from this Respondent and the Respondent had replied for the petitioner information under the Right to Information Act in letter Dated on 17.05.2017, that the land available for the said boundaries under the sale deed is only 22 sq.mt. Hence, subsequently the petitioners had filed the present writ petition before this Hon’ble Court for the reliefs as stated in the petition.
6. It is humbly submitted that this respondent the petitioners were filed in writ petition for filing Counter or actual aspect produce before this Hon’ble high Court were files in writ petition, re-measurement was done in the presence of the petitioners, by Tahsildar, and the Head Surveyor of Maduravoyal Taluk on 13.04.2018. it was once again ensured that the available land for the shop No.III in S.No.76 is only 22 sq.mt on the Eastern side 2.8. mt. On Southern side 14.8 mt and on Northern side 15 mt as per Field Measurement Book. Remaining of land is in survey No.78 as per the FMB. It was measured and marked in the field in the presence of the petitioners’ representatives who were present on that day.’
13. The stand of the Tahsildhar is thus clear and categoric as regard the extent of land available in the possession of the petitioners. In the course of the oral arguments, a point was raised by the Government Pleader that the discrepancy could have arisen on account of the mistake in the noting of the ‘G-line’ on this property. According to the GP, the ‘G-line’ that originally stood at a length of 120.8 had been erroneously shortened to a figure of 101.6. This led to a truncating of the entire property upon which the project stood, and the consequential disappearance of the site in question.
14. Admittedly, the property in question stands upon survey number 76 and is flanked by the property at survey number 78. Since it was felt that some clarity must be obtained as to the area in the possession of R3, a report had been called for from the Tahsildar in regard to the measurements of the property. The Report dated 24.07.2018, accompanied by two sketches, states thus:
Thiru.P.Senthilvel, M.A., B.L., The Government Pleader
Tahsildar, Hon’ble High Court,
Maduravoyal. Chennai – 104.
Rc. No.1852/2016/B1 dated: 24.07.2018
Sub: Court Case – Tiruvallur District – Maduravoyal Taluk – Writ Petition No.34735 & 31636 of 2017, filed by Mrs. S.Lakshmi and Ramaselvi – Order of the Hon’ble High Corut of Madras- Report submitted – Regarding.
Ref: W.P. No.31636 of 2017 filed by Mrs.S.Lakshmi & Ramaselvi before the Hon’ble High Corut of Madras, Order Dated 02.07.2018.
As Directed by the Hon’ble High Court of Madras the land in Survey No.76 of Adayalampattu village, Maduravoyal Taluk, Tiruvallur District was measured with the assistance of Head Surveyor, Maduravoyal on 12.07.2018 and again on 24.07.2018 after issuing notices to all the parties concerned indicating the date and time for resurveying the property in question.
It was once again ensured that the available land earmarked for the shop in Survey No.76 is only 22 Sq.mt. On the Eastern side 2.8 Mt. On Southern side 14.8 Mt and on Northern side 15.6 mt. as per Field Measurement Book.
In order to find out any encroachment on the land in question, the adjacent south side Land Survey No.78 was also measured in the presence of the concerned parties. After the measurement it was found that there is no encroachment has been made into the property in question as per filed.
I herewith enclosed the Combine Map of Survey No.76 and 78, and Approved Layout Sketch (Part) of the property in question for the kind perusal of the Hon’ble High court of Madras.
Encl: Combined Sketch.’
15. This Court sought yet another report from the Tahsildar, specifically seeking a comparison of the extents of the lands in survey numbers 76 and 78 to decide the issue of encroachment by neighbours. The Report at paragraphs 4, 5, & 6 states as follows:
‘4. It is respectfully submit that during measuring the land in survey No.66 and 78 as on date, it has been checked present position of Field Boundaries and its correctness by running the connected check lines from the adjoining fields and it is found that the Field Boundaries measurements are in correct and no difference in the Field Boundaries measurement of both the Survey No.76 & 78. But in the G line measurement of Survey No.76 from the Junction Letter D to H in Diagram of Survey No.76 attached to this report is comes to 101.6 meter only instead of 120.8 meters as recorded in the Field Measurement Sketch of the year 1984. The G line measurements of Survey No.78 are found correct
5. It is respectfully submit that the registered extent of the Survey No.76 is 5.95 Acre correctly tallied by adopting G line measurement from the Junction letter D to H as 101.6 meter. But while adopting the G line measurement as 120.8 meter as in the year of 1984, the extent of Survey No.76 is exceeds from its registered extent of 5.95 Acres to 6.096 Acres (or) 6.10 Acres. i.e 15 cents excess and it will affect the extent of Survey No.78 from its recorded extent 3.33 Acres and reduce to 3.18 Acres. Further it is submit that on comparison with Initial Survey Field Measurement Sketch, there is no G Line measurement in that G line in the year 1911 of which measurement recorded as 120.8 meter in the year of 1984 and the shape of the Field Measurement Sketch also differ between this.
6. It is respectfully submit that the Taluk Deputy Inspector of Survey has correct the measurement of G line in survey No.76 from 120.8 meter to actual measurement state on ground as 101.6 meter as he was empowered to correct the measurement errors found during the course of their filed inspection work as per rule laid down in the Chain Survey and Land Records Maintenance Manual Part II Chapter 2 par 6.(Copy of the specified rule submitted along with this report).’
16. Upon a perusal of the Reports as above, one thing appears clear. The 3rd respondent appears to have sold away a portion of land comprised in survey no.78 of which it is not the legitimate owner. Almost the entire extent of land purchased by the petitioners falls within survey no.78. The learned counsel for R3 would seek to explain it away by stating that the fault lies in the defective G-line drawn/noted by the Government. According to him, the defective G-line has truncated the land leading to the reduction in the area of the property.
17. I am unable to accept this argument. The 3rd respondent is expected to transact solely in regard to the property owned by it even assuming a flaw in marking of the G-line. The records of R3 filed before the Court reveal that the sum total of the lands purchased by it and held in its possession was only 5.95 acres, whereas, the sum total land sold by it (including provision for roads) is 6.15 acres. Clearly thus, it has transferred more land that than it owns and cannot seek to shift the blame upon the Government or a faulty G-line.
18. In such circumstances, I am inclined to accept the plea of the petitioners. The first prayer seeks the demarcation of the plot along the lines of the measurements in the s
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ale deed, viz. 6000 sq. ft. This is evidently not possible in the light of the categoric counter and reports of the Tahsildars to the effect that such an extent of land does not exist in the property/survey number in question. The second limb seeks a direction to the respondents to allot a plot in favour of the petitioners in any approved layout being developed by the 3rd respondent society, commensurate to the value of the property purchased by the petitioners vide sale deed dated 27.04.2006 registered as document No.804 of 2006 on the file of the Sub-Registrar, Saidapet and I am inclined to accept the same. 19. In fine, the 3rd respondent is directed as follows: i) Return the amount of 10,89,000/- along with interest at the rate of 18% per annum from date of receipt till date of payment, OR (i) identify an alternate site of comparable value in terms of the present prevailing market value of the property in question and hand over the same to the petitioners within a period of four weeks from the date of receipt of a copy of this order. 20. Though R3 is admittedly engaged in the development of plots at Villivakkam, learned counsel for R3 is unable to commit to the availability of plots therein even after sufficient time and opportunity was extended to enable him to obtain instructions in that regard. I thus leave it to R3 to identify and offer an appropriate plot in terms of my direction as above to the petitioners in exchange for the plot originally purchased by them. 21. It is made clear that time is the essence of this order, seeing as the petitioner is stated to be a senior citizen. The argument that the petitioners have approached this Court belatedly and are seen not to have been vigilant in regard the protection of their property is also rejected since lethargy and even negligence cannot justify the present transaction qua the petitioners and R3. 22. This writ petition is allowed in the aforesaid terms. Connected WMP is closed, with no order as to costs.