Dismissed

Arul M. Futnani v. the District Collector

Madras HC8 Sept 2011WP/7556/2010

Case brief

AI extract

What is this about?

In a writ petition under Article 226, petitioner challenged a Government Order alienating Government poramboke 'cart track' land for a sewerage pumping station, arguing it was passed under survey No. 67 without following requisite procedures and affecting his private right of ingress and egress to his adjoining property. The court examined the petitioner's locus standi and the validity of the alie

What did the court decide?

Writ petition dismissed; no order as to costs; connected miscellaneous petition closed.

Arul M. Futnani Vs the District Collector — Land Acquisition | Madras HC (2011)

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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DATED : 08.09.2011

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CORAM

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THE HONOURABLE MR.JUSTICE K.CHANDRU

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W.P.No.7556 of 2010 and M.P.No.1 of 2010

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Arul M.Futnani ...Petitioner

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Vs.
1.The District Collector,
Kancheepuram,
Chengalpattu District.
2.The Managing Director,
Chennai Metro Water Supply and
Sewerage Board, Chindaripet,
Chennai.
3.The Tahsildar,
Tambaram Taluk,
Tambaram, Chennai.
4.The Secretary to Government,
Revenue Department,
Fort St. George,
Chennai -9. ...Respondents
(R4 impleaded as per order dated 27.01.2011 by TRJ in
M.P.No.2/2010 in W.P.No.7556 of 2010)

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Writ Petition is preferred under Article 226 of the Constitution of India praying for the issue of a writ of Certiorarified mandamus, calling for the records relating to the Government Order issued by the Government of Tamil Nadu vide G.O.Ms.No.219 Revenue (LD5/1) Department, dated 12.05.2010 and quash the same and forbear the respondents from interfering with the petitioner's right to use the subject lands, morefully set out in the writ petition schedule as ingress and egress to his property.

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(Prayer amended as per order dated 27.01.2011 by TRJ in M.P.No.1 of 2011 in W.P.No.7556/2010)

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SCHEDULE

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All that piece and parcel of land which is classified as 'cart track' as per the revenue records measuring an extent of 0.16 hectares in Survey No.67 of Semmancherry Village, Tambaram Taluk, Kancheepuram District, within the Sub-Registration District of https://hcservices.ecourts.gov.in/hcservices/ Neelankarai, Chennai.

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For Petitioner : Mr.Venkatesh

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For Respondents : Mr.R.Ravichandran,AGP for R1, R3 and R4

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Mr.G.S.Mohan for R2

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O R D E R

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The petitioner claiming to be a resident of Semmancherry village near Chennai has filed the present writ petition, seeking for a direction to forbear the respondents from converting the cart track or handing over the same to the second respondent Chennai Metro Water Supply and Sewerage Board (for short Metro Water) or changing the character or classification of the cart track more particularly described in the schedule appended to the writ petition. In the schedule appended to the writ petition, the property was described as follows:-

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"All that piece and parcel of land which is classified as 'cart track' as per the revenue records measuring an extent of 0.16 hectares in Survey No.67 of Semmancherry Village, Tambaram Taluk, Kancheepuram District, within the SubRegistration District of Neelankarai, Chennai."

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When the writ petition came up on 12.04.2010, this Court while directing the Government Advocate to take notice granted interim injunction for a limited period. The said interim injunction came to be extended until further orders by a subsequent order dated 09.06.2010.

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Thereafter the petitioner impleaded the Secretary to Government, Revenue Department as party 4^th respondent by filing M.P.No.2 of 2010.

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On notice from this Court, the first respondent District Collector, Kancheepuram filed a counter affidavit dated 30.06.2010 indicating that the State Government by issuance of their order in G.O.Ms.No.219 Revenue Department dated 12.05.2010 had approved the proposal of the Metro Water and an area of 0.04.0 hectares were alienated to the second respondent for setting up of Sewerage Pumping Station/Sewerage Treatment Plants.

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The petitioner filed M.P.Nos.1 and 2 of 2011 for amending the prayer made in the writ petition as well as permission to raise additional grounds. In the amended prayer, the petitioner seeks to set aside the Government order in G.O.Ms.No.219, Revenue Department, dated 12.05.2010 and to forbear the respondents from interfering with the petitioner's right to use the subject land set out in the schedule appended to the writ petition.

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https://hcservices.ecourts.gov.in/hcservices/

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In the grounds raised, the petitioner contended that the impugned order of the Government was passed without following the procedure under Section 125(2) of the Tamil Nadu Panchayat Act, 1994; the subject land do not vest with the Government and they are not the owners of the land. The definition of the term 'Public Road' as found in the Tamil Nadu Panchayat Act includes a cart track as per Section 2(28) of the Act. It was contended that no Government Order has been passed for re-classification of the subject lands from cart tack into any other usage. In the present case, since construction was to be done on the land which is to be earmarked as cart track, the order is illegal.

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Those two applications were allowed on 27.01.2011 and 31.03.2011 respectively.

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In the counter affidavit filed by the District Collector viz., the first respondent dated 30.06.2010, it was stated that the petitioner's land is situated in S.Nos.64,65,66 at Semmencherry Village, Sholinganallur Taluk in Kancheepuram District. The so called Cart Track Poramboke is found in S.No.67 which is a Government land. The second respondent Metro Water by their letter dated 02.12.2009 had applied for the alienation of the Government land for setting up Sewerage Pumping Station/Sewerage Treatment Plants along the IT Corridor on the suit land. The land in Survey No.67 in the Semmencherry Village was found suitable. After observing the formalities, the third respondent Tahsildar, Sholinganallur Taluk send a proposal dated 14.11.2009 to the first respondent. The third respondent while sending the proposal subdivided the land as S.No.67/1 and 67/2 and only 0.04.0 hectares was intended to be alienated to second respondent and the remaining lands in S.No.67/1 to the extent of 0.12.0 hectares was left as Cart Track. The State Government had approved the said proposal and issued the impugned GO and still the cart track Poramaboke in S.No.67/1 is left intact. The petitioner apprehending that his ingress and egress will be affected had filed the present writ petition. The Cart Track Poramboke is the Government land and that can be used by the general public. The petitioner cannot claim the said land for the Cart Track as a matter of exclusive right and he cannot dictate to the Government its power to alienate its own land. The petitioner's right as a general public to make use of the Cart Track in S.No.67/1 was not affected and no claim for private use of the land can be made by the petitioner.

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In the impugned GO wile alienating several lands including the one in S.No.67 described as Vandi Padhai, the Government accepted the request of the Managing Director of Metro Water and held that it is only granted for the purpose of setting up Sewerage Pumping Station/Sewerage Treatment Plants along the I.T. Corridor. The conditions under Revenue Standing Order 24(6) viz., that the land should be used for the purpose for which it was granted lest it should be surrendered to Government.

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Since the petitioner had raised additional grounds and https://hcservices.ecourts.gov.in/hcservices/ also made the State Government as party 4^th respondent, the 4^th

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respondent was directed to file counter affidavit. Accordingly, they had filed counter affidavit dated 17.06.2011.

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In the counter affidavit filed by the 4^th respondent, it was stated that the lands were required for construction of water supply head works and Sewerage Treatment Plants for providing extensive water and sewerage system to suburban nodes along the I.T.Corridor. It was identified in coordination with the revenue officials and the lands were found to be vacant and poramboke lands. The land issues related to I.T.Corridor were taken up for discussion and review during the Collector's conference held on 17.09.2009 and 18.09.2009 and it was decided to finalise various pending proposals within a time frame. The lands that were required for construction of Sewerage Pumping station/Sewerage Treatment Plants have been restricted to minimum requirement and the Government had already sanctioned the project which is under implementation. However, the work on various pumping stations and sewerage treatment plants could be taken up only after securing the required lands. Therefore, the second respondent Metro Water requested the District Collector to issue enter upon permission and to alienate the lands on free of cost to the Metro Water. Accordingly, orders were issued by the Government in G.O.Ms.No.219 Revenue Department, dated 12.05.2010. The writ petition was originally filed on an apprehension that there will be total block of Cart Track for the petitioner's ingress and egress. Since the left out portion can still be used as cart track for general public for free use, including the petitioner, the apprehension of the petitioner is no longer valid. The petitioner cannot claim the Government Poramboke land as a matter of right for his exclusive use. The Tahsildar, Tambaram in his report sent to the District Collector on 17.11.2009 had stated that a public advertisement was given regarding the land transfer and no written objections were received from the village people. The village people as well as the Village Administrative Officer had recommended the lands for use in public purpose.

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When asked as to how the writ petition is maintainable for canvassing the private interest of the petitioner, the learned counsel for the petitioner placed reliance upon the following judgments:

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i) The judgment of the Supreme court in Bangalore Medical Trust v. B.S.Muddappa and others reported in (1991) 4 SCC 54 for contending that the residents of the locality are the persons intimately, vitally and adversely affected by any action taken by the State Agency and if the action taken by the State agency deprives them of facilities reserved for the enjoyment and protection, the residents of the locality are entitled to maintain the writ petition and they have locus standi.

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ii) The judgment of the Supreme Court in Ghulam Quadir v. Special Tribunal and others reported in (2002) 1 SCC 33 for contending that the orthodox rule of interpretation regarding the https://hcservices.ecourts.gov.in/hcservices/ locus standi of a person to reach the court has undergone a sea

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change with the development of the constitutional law in India. If a person approaching the Court can satisfy that the impugned action is likely to adversely affect his right, the petition filed by that person cannot be rejected.

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iii) The decision of the Supreme Court in Mehsana District Central Cooperative Bank Ltd., and others v. State of Gujarat and others reported in (2004) 2 SCC 463 for contending that if a statute prescribed norms to be followed, it has to be followed only in that fashion and if any violation in statutory rules is brought to the notice of the authorities and if the authorities do not perform the statutory duty, the aggrieved citizen can always bring it to the notice of the High Court.

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iv) The judgment of the Supreme Court in Tashi Delek Gaming Solutions Ltd. and another v. State of Karnataka and others reported in (2006) 1 SCC 442 for contending that if any citizens' right in any manner to carry on his business is infringed or there is a threat to his liberty, a petition is maintainable and access to justice is a human right.

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v) On the merits of the case, he referred to the decision of this Court in K.V.K.Janardhanan v. The State of Tamilnadu rep. By the Collector of Salem and others reported in 1995-1-L.W. 451 for contending that neither the Government nor the local body has got any right to put up any obstruction over a public street and the owner of the land adjoining the public street has got a right to access at every point where his her land adjoining the public street. In that case, it was held that putting up an iron fence between the land of the petitioner and that of the suit cart track was illegal. But it must be noted that the said judgment arose out of a suit and in a CRP arising out of an order of the lower Court, these observations were made.

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vi) The judgment of this Court in Mecca Jumma Mosque, rep. By its Assistant Imam, S.Mannan Ahmed Moideen v. The Director of Municipalities and others reported in 2001-2-L.W.817 for contending that the right of the public to pass along the highway, it was held that though Civil Court can decide such issues but when a Municipality was trying to do certain acts for which they are not legally entitled and if they take away the right of a citizen, the writ petition is maintainable.

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vii) The judgment of a Division Bench of this Court in Vengaivasal Village Panchayat by its President v. The State of Tamilnadu by its Secretary to the Revenue Department and others reported in 2005-3-L.W.351, wherein it was held that the public road within the meaning of Section 2(28) of the Tamil Nadu Panchayats Act, which vests with the Panchayat for maintenance and to deprive the Panchayat of the road, the procedure under Section 125(1) of the Act will have to be followed and the Government cannot ignore the Panchayat before divesting the Panchayat of the right to keep the street as illegal.

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https://hcservices.ecourts.gov.in/hcservices/

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viii) An unreported decision of this Court in Leela Thomas v. The Executive Officer, Ullagaram Puzhuthivakkam Municipality (W.P.No.18327 of 2010) dated 07.01.2011, where the respondents were directed not to put up any construction interfering the petitioner's peaceful possession and enjoyment of the house site.

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In the present case, as noted already, the respondents had not deprived the petitioner's ingress and egress into the plot owned by him. But on the contrary, the State Government, which is sole owner of the Cart Track Poramboke land had alienated a portion of the property that too to a very small minuscule extent of 0.04.0 hectares for setting up a Sewerage Pumping Station. The report of the Tahsilar clearly indicates that public objections were called for and no members of the public had objected including the Village Administrative Officer. Though under Section 2(28) of the Act extended definition of 'Public Street' is mentioned under the Tamil Nadu Panchayats Act, in the present case, the classification of Survey No.67 is only Cart Track Poramboke. The petitioner who alone had come forward to challenge the same initially on an apprehension that the entire access will be blocked. But in the present case, the Tahsildar had subdivided the land into S.Nos.67/1 and 67/2 and had left over the major portion under S.No.67/1 and it is only under S.No.67/2, the land had been alienated to the Metro Water. It is not the question of petitioner lacking any locus standi in challenging the GO but the grounds under which the GO is challenged has been considered in this writ petition. The petitioner's right of ingress and egress is not affected in any manner. The land is admittedly a Poramboke land classified as Cart Track and formalities had been observed before alienating the land. The petitioner cannot insist on any further formalities. If at all there was any non-observance of Panchayat resolution, the real aggrieved person will be the Panchayat and not the petitioner. The petitioner himself in the beginning admitted that the writ petition was not filed in public interest, the apprehension made by him was not established before this Court.

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In the light of the above, this Court is not inclined to entertain the writ petition. Accordingly, the writ petition stands dismissed. However, there will be no order as to costs. Consequently, connected miscellaneous petition is closed.

//true copy//

Sub Asst.Registrar

svki

https://hcservices.ecourts.gov.in/hcservices/

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To
1.The District Collector,
Kancheepuram,
Chengalpattu District.
2.The Managing Director,
Chennai Metro Water Supply and
Sewerage Board, Chindaripet,
Chennai.
3.The Tahsildar,
Tambaram Taluk,
Tambaram, Chennai.
4.The Secretary to Government,
Revenue Department,
Fort St. George,
Chennai -9.
1 cc to Mr.G.S.Mohan, Advocate, Sr.No.55657
1 cc to Mr.Venkatesh Mohanraj, Advocate, Sr.No.55255
ORDER IN
W.P.No.7556 of 2010
RS {CO}
TP/23.9.2011.

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https://hcservices.ecourts.gov.in/hcservices/

Arul M. Futnani v. the District Collector

Case brief

What is this about?

What did the court decide?

Arul M. Futnani v. the District Collector

Case brief

What is this about?

What did the court decide?

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