Allowed

Kamali Dinakaran v. the Corpn.Commissioner

Madras HC5 Sept 2024WP(MD)/17656/2020

Case brief

AI extract

What is this about?

Writ petition seeking removal of encroachments by the third respondent on a 20-feet public road in Madurai. The court construed sale deed recitals showing both abutting owners paid for half the road, concluded the road vested in the local body on approval of the 1974 layout, and directed removal of encroachments under Section 128.

What did the court decide?

Corporation directed to remove third respondent's encroachments after notice under Section 128, TN Urban Local Bodies Act, within 12 weeks; connected miscellaneous petition closed.

Kamali Dinakaran Vs the Corpn.Commissioner — Municipal and Town Planning | Madras HC (2024)

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W.P.(MD) No.17656 of 2020

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BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

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DATED : 05.09.2024

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CORAM:

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THE HONOURABLE MR.JUSTICE R.SUBRAMANIAN and THE HONOURABLE MRS.JUSTICE L.VICTORIA GOWRI

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W.P.(MD) No.17656 of 2020 and

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W.M.P.(MD)No.14745 of 2020

Kamali Dinakaran

... Petitioner

-vs-

1.The Corporation Commissioner, Madurai Corporation, Madurai – 625 002.

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2.The Assistant Commissioner, Zone – 2, Madurai Corporation, K.Pudur, Madurai City, Madurai.

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3.S.Rajalingam ... Respondents

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PRAYER: Petition filed under Article 226 of the Constitution of India, to issue a Writ of Mandamus, directing the respondents 1 and 2 to remove the encroachments including the iron roofed shed and iron gate constructed by the respondent no.3 in 20 feet public Corporation road situated at Ayyanar 2^nd Street, K.K. Nagar, Zone No.2, Madurai City, Madurai District.

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For Petitioner : Mr.Hentri Thiphagne For Respondents 1 & 2 : Mr.S.Vinayak For 3^rd Respondent : Mr.T.Arul, For Mr.S.Sukumar

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https://www.mhc.tn.gov.in/judis _____________ Page 1 of 12_

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W.P.(MD) No.17656 of 2020

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O R D E R

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[Order of the Court was made by R.SUBRAMANIAN, J.]

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Mr.S.Vinayak, learned Standing Counsel takes notice for the respondents 1 and 2. Mr.T.Arul, learned counsel takes notice for the 3^rd respondent.

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2.This Writ Petition has been filed, seeking issuance of Writ of Mandamus, directing the respondents to remove the alleged encroachment made on a public road called Ayyanar 2 nd Street, K.K. Nagar, Zone - II, Madurai, within the time stipulated by the Court.

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3.Mr.Hentri Thiphagne, learned counsel appearing for the petitioner would submit that the area in question is a public road through which he has got access to his land in Plot no.8. The third respondent who is the owner of Plot no.9, had blocked the 20 feet road by putting up a shed and gate, thereby preventing access. The entire property, which is now situated in Survey No.17/1 was laid out in to plots in the year 1974, after obtaining approval from the Managiri Panchayat. The roads were provided in between the plots and the plots were sold to various individuals. While the petitioner's predecessors purchased Plot nos.5 and 8 in the said lay out, the third respondent purchased the Plot no.9. The third respondent's sale deed

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https://www.mhc.tn.gov.in/judis ______________

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Page 2 of 12

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W.P.(MD) No.17656 of 2020

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is anterior to that of predecessor in interest of the petitioner. According to Mr.Thiphagne, the land sold to the petitioner measuring about 4066 square feet is bounded on all three sides by roads by a width of 20 feet. The cost of ½ of the said road that is, 10 feet on all three sides has also been paid by the purchaser, though it is shown as the public pathway. Therefore, according to the learned counsel, the area measuring about 20 feet by 40 feet situated on the North of Plot no.9 and south of Plot no.8 split into two parts and while the petitioner paid the cost of the northern 10 feet, the respondents paid the costs of the southern 10 ft. Therefore, the same should be used as the common road for both.

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4.Contending contra Mr.T.Arul, the learned counsel for the 3^rd respondent would submit that though the predecessors purchased 400 square feet as the road, they did not convey it to him, when the property was sold to him in the year 2017. He would draw our attention to the recitals in the sale deed in his favour to submit that this road portion is now given a separate Survey No.17/4A and the same stands registered in the name of his predecessors even today and it is with their permission, he has to put constructions.

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5.We have also been extensively taken through the property description in the three sale deeds. The earliest sale deed is the sale deed

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https://www.mhc.tn.gov.in/judis _____________ Page 3 of 12_

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W.P.(MD) No.17656 of 2020

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dated 08.05.1978, wherein once Navaneetha Ammal purchased Plot no.3, present Plot no.9, now owned by the third respondent. The description in the said document reads as follows:-

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'fpiua nrhj;J tpguk;

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kJiu b jy;yhFsk; rgb kJiu tlf;Fj; jhYfh 49 epu; khdfpup ; fpuhkj;jpy; eQ;ir R.S.No.17/1 y; fl;Lg;gl;lJk; vd;ghfk; nrz;L 25I tPl;lb kid gpshl;Lfshfg; gpupj;jpUg;gjpy; 3epu; gpshl;lhf cs;sJ khd tPl;lb fhypkidf;F ehd;Fkhy; :-

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tlf;F : 20 mb mfy fpoNky; NuhL

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fpof;Nf : i\ ru;Nt ek;gupy; vd; iftrk; cs;s 4 epu; gpshl; njw;Nf : ru;Nt epu;.16 / 5y; Nru;e;j epyk; Nkw;Nf : ru;Nt epu;.16 / 5y; Nru;e;j epyk;

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,jw;Fs;gl;l fPo;Nky; [hjpab tlGuk; 40 njd;Guk; 37> njd;tly; [hjpab fpo;Guk; 59> Nky;Guk; 52f;F 2114 rJub mb msTs;s kidAk; i\ kidapd; tlGuk; cs;s Nuhl;bw;fhf ,e;j kidf;Fupa <T rJub mb 400k; Nru;j;J nkhj;jk; 5 nrz;L 336 rJu mb ,lk; jq;fSf;F fpuak;. i\ Ny tPl;by; cs;s NuhLfspy; jhq;fs; nghJthfg; Goq;fpf; nfhs;s ghj;jpak; cz;L. i\ ];jyk; kJiu fhu;g;gNu\d; vy;iff;Fs;gl;lJ. i\ kidapd; gl;lhitj; jq;fs; ngaUf;F khw;w kD nfhLj;Js;Nsd;. Nkw;gb nrhj;ijg; nghWj;J ahnjhU tpy;yq;f tptfhuKk; ,y;iynad;W cWjp $WfpNwd;. VNjDk; tpy;yq;fk; ,Ue;jhy; ehNd vd; ,ju nrhj;jia NtwpypUe;J jPu;j;Jf; nfhLg;NghdfTk;. i\ ghfg;gj;jpuj;jpy; NtW nrhj;J Nru;e;jpUg;gjhy; mijf; nfhLf;ftpy;iy. Nkw;gb nrhj;jpd; jw;fhy khu;f;nfl; kjpg;G &.6925 / -'

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6.The said Navaneetha Ammal, purchaser under the sale deed dated 08.05.1978, had sold the western half of Plot no.9 to one Sornalakshmi (under a sale deed dated 31.07.1986) and the description of the said sale

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https://www.mhc.tn.gov.in/judis _____________ Page 4 of 12_

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W.P.(MD) No.17656 of 2020

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deed reads as follows:-

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'fpiua nrhj;J tpguk;

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kJiu b jy;yhFsk; rg;b kJiu tlf;Fj; jhYfhthfapUe;J

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jw;rkak; kJiu khefuhl;rpAld; ,izf;fg;gl;Ls;s 49 epu; khdfpup fpuhkj;jpy; uPru;Nt 17 / 1y; fl;Lg;gl;lJk; nrz;L 25I tPl;lb kid gpshl;Lfshfg; gpupj;jpUg;gjpy; fl;Lg;gl;lJkhd 3epu; gpshl;by; Nky;GuKs;s 2 nrz;L 366 rJumb cs;s tPl;lb kidf;F ehd;Fkhy; mb msT tpguk;:

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tlf;F : 20 mb mfy fpoNky; NuhL

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fpof;Nf : ehsJ Njjpapy; vd;dplk; fpiuak; ngWfpw gp.jpdfud; mtu;fspd; fPo;GuKs;s kid

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njw;Nf : ru;Nt epu;.16 / 5y; Nru;e;j epyk;

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Nkw;Nf : i\ ru;Nt epu;.16 / 5y; Nru;e;j epyk;

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,jw;Fs;gl;l kid[hjpabahy; fpoNkyb tlGuk; 20

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fpoNkyb njd;Guk; 18

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njd;tlyb fPo;Guk; 55 1 / 2

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njd;tlyb Nky;Guk; 52 f;F 1038 rJumb

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cs;s kidAk; tlGuKs;s 20 mb mfy NuhLf;fhf tplg;gl;Ls;s ,k;kidf;Fupa <T rJumb 200k; Nru;e;J nkhj;jk; 1238 rJumb cs;s tPl;lb kidAk; i\ tlGuKs;s Nuhl;by; ele;J nfhs;Sk;ghj;jpaKk; cs;gl jq;fSf;F fpiuak;.

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i\ tPl;lb kidapd; khu;f;nfl; kjpg;G &.34050-00'

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7.On the same day, the said Navaneetha Ammal had sold the eastern

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portion to one Dinakaran and the description of the property in the said document reads as follows:-

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'fpiua nrhj;J tpguk;

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kJiu b jy;yhFsk; rg;b kJiu tlf;Fj; jhYfhthfapUe;J jw;rkak; kJiu khefuhl;rpAld; ,izf;fg;gl;Ls;s 49 epu; khdfpup

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https://www.mhc.tn.gov.in/judis _____________ Page 5 of 12_

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W.P.(MD) No.17656 of 2020

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fpuhkj;jpy; uPru;Nt 17 / 1y; fl;Lg;gl;lJk; nrz;L 25I tPl;lb kid gpshl;Lfshfg; gpupj;jpUg;gjpy; fl;Lg;gl;lJkhd 3 epu; gpshl;by; fPo;GuKs;s Rkhu; 3 nrz;Ls;s tPl;lb kidf;F ehd;Fkhy; mb msT tpguk;:

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tlf;F : 20 mb mfy fpoNky; NuhL fpof;Nf : i\ ru;Nt ek;gupy; Nru;e;j 4 epu; gpshl; kid njw;Nf : ru;Nt epu;.16 / 5y; Nru;e;j epyk;

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Nkw;Nf : ehsJ Njjpapy; vd;dplk; fpiuak; ngWfpw nrhu;znyl;Rkp mk;khspd; Nky;GuKs;s kid

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,jw;Fs;gl;l kid[hjpabahy; fpoNkyb tlGuk; 20

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fpoNkyb njd;Guk; 18 1 / 2 njd;tlyb fPo;Guk; 59 njd;tlyb Nky;Guk; 55 1 / 2f;F 1105

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rJumb

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cs;s kidAk; tlGuKs;s 20 mb mfy NuhLf;fhf tplg;gl;Ls;s ,k;kidf;Fupa <T rJumb 200k; Nru;e;J nkhj;jk; 1305 rJumb cs;s tPl;lb kidAk ; i\ tlGuKs;s Nuhl;by; ele;J nfhs;Sk; ghj;jpaKk; cs;gl jq;fSf;F fpiuak;.

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i\ tPl;lb kidapd; khu;f;nfl; kjpg;G &.36000-00'

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8.Upon execution of these two sale deeds, Dinakaran and

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Sornalakshmi become entitled to entire plot no.9. 400 Square feet of road was apportioned to both of them at 200 each as per the recitals found in the sale deeds. The third respondent had purchased the entire Plot no.9 from both Dinakaran and Sornalakshmi on 29.06.2017. The description of the property in his sale deed are as follows:-

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'nrhj;J tpguk;

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kJiu khtl;lk;> kJiu tlf;F gjpT khtl;lk;> jy;yhFsk; rhu;gjptfk;> kJiu tlf;Fj; jhYfh> 49 ek;gu; khdfpup fpuhkk; 1tJ gpl;> uP.ru;Nt.vz;.

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https://www.mhc.tn.gov.in/judis _____________ Page 6 of 12_

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17 /

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W.P.(MD) No.17656 of 2020

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17 / 1-y; eLtpy; nrz;L 25y; fl;Lg;gl;l gpshl;.ek;gu;.3-epu; kidaplj;jpw;F ehd;Fkhy; mb msT tpguk;.

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tlf;F : 20 mb mfy fpoNky; nghJNuhL

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fpof;Nf : jpU..uh[ypq;fk; iftrKs;s gpshl;.epu;.4 kid.

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njw;Nf : ru;Nt epu;.16 / 5-y; fl;Lg;gl;l nrhj;J.

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Nkw;Nf : ru;Nt epu;.16 / 5-y; fl;Lg;gl;l nrhj;J.

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jw;NghJ mse;J nfhz;l mstpd;gb kid [hjpabahy; tlGuk; Nuhl;Lf;fhf tplg;gl;l 400 rJub kidaplk; Nghf fPo;Nky; [hjpab tlGuk; 40 mb> njd;Guk; 36 1 / 2 mb> njd;tly; [hjpab Nky;Guk; 52 mb> fPo;Guk; 59-mb> nkhj;jk; 2143 rJub kidaplk; KOikAk; jq;fSf;F ,jd;%yk; ehq;fs; Kork;kjj;NjhL fpiuak; nra;J nfhLj;jpUf;fpNwhk;.

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Nkw;gb nrhj;J jw;nghOJ kJiu khefuhl;rp vy;iyf;Fl;gl;lJ.

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Nkw;gb nrhj;J jw;Nghija T.S.No.30, khdfpup 2tJ njU kjpg;gpy; fl;Lg;gl;ljhFk;. Nkw;gb nrhj;jpd; kjpg;G &.27.28.039 / -'

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9.The petitioner in the Writ Petition has purchased the property namely Plot nos.5 and 8, old Nos.1 and 2 under the sale deed dated 16.09.1978 along with proportionate road portion from one of the vendors of Navaneetha Ammal. The description of the property in the said sale deed reads as follows:-

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“ fpua nrhj;J tpguk;

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kJiu b.jy;yhFsk; rg;b kJiu tlf;Fj; jhYfh 49f;F khdfpup fpuhkj;jpy; eQ;ir uP ru;Nt ePu;.17 / 1y; vq;fspy; 1tJ egu; gp.fUg;gzd; mk;gyk; ghfk; nrz;L 20 1 / 2 apy; fl;lg;gl;l 2 epu; gpshl; kidAk;> vq;fspy; 2tJ egu; ghfk; nfhz;L 25y; fl;lg;gl;l 1 epu; gpshl; kidAk; Nru;e;J xNu Nrfukhf cs;sJk; ,jd;%yk; jq;fSf;F ehq;fs; fpuak; nra;J nfhLg;gJkhd tPl;lbapdf;F ehd;Fkhy; :-

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tlf;F : 20 mb mfy fpoNky; nghJNuhL

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https://www.mhc.tn.gov.in/judis _____________ Page 7 of 12_

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W.P.(MD) No.17656 of 2020

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fpof;Nf : 20 mb mfy njd;tly; nghJNuhL

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njw;Nf : 20 mb mfy fpoNky; nghJNuhL Nkw;Nf : Ntj khzpf;fk; tPLk;> khupr;rhkp nul;bahu; kidAk;>

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Rg;gpukzpak; kidAk;> ru;Nt epu;.16 /4 y; fl;Lg;gl;lit.

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,e;j ehd;FkhYf;Fs; fpoNky; [hjpab tlGuk;-45> njd;Guk; 52> njd;tly; [hjpab fPo;Guk; - 86> Nky;Guk; (29 + 33 ½ +41) = 103 ½ f;F 4066 rJumb msTs;s kidAk;> i\ Ny mTl;by; cs;s NuhLfspy; jhq;fs; nghJthf ele;J nfhs;Sk; ghj;jpaKk;> i\ NuhLfSf;fhf ,e;j fpua kidf;Fupa <T 1830 rJu mbAk; Nru;e;J nkhj;jk; 5896 rJu mb my;yJ 13 nrz;L 233 rJu mb ,lk; jq;fSf;F fpuak;. I\ ];jyk; khdfpup fpuhk gQ;rhaj;J Nghu;L vy;iyf;Fs; fl;Lg;gl;bUe;J jw;NghJ kJiu fhu;g;nghNu\d; tuk;Gf;F Nru;f;fg;gl;Ls;sJ.

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Nkw;gb kidapd; gl;lhitj; jq;fs; ngaUf;F khw;Wk;gb ,j;Jld; gl;lh khWjy; kD nfhLj;Js;Nshk;.

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Nkw;gb nrhj;ijg; nghWj;J ahnjhU tpy;yq;fKk; tptfhuKk; ,y;iynad;W cWjpahAk; ek;gpf;ifahAk; nrhy;YfpNwhk;. VNjDk; tpy;yq;f tptfhuk; ,Ue;jhy; ehq;fNs vq;fs; ,ju nrhe;j I Nt[papypUe;J jPu;j;Jf; nfhLg;NghkhfTk;.

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,jw;fhjuthd NkNy fz;l j];jNtRfspy; NtW nrhj;Jk; Nru;e;jpUg;gjhy; mtw;iwj; jq;fsplk; nfhLf;ftpy;iy.

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fpua nrhj;jpd; jw;fhy khu;f;nfl; kjpg;G &.16.245 / -.'

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10.The recitals in all the above sale deeds, if construed together would show that both owners on either side of the road are made to pay for half of the road abutting their property. While the petitioner had purchased two plots together which measure about 4066 square feet, since the land purchased by the petitioner is bounded by road on all three sides, the boundary description in the sale deed reads that she has also paid for 1830

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https://www.mhc.tn.gov.in/judis _____________ Page 8 of 12_

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W.P.(MD) No.17656 of 2020

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square feet of land shown as road apportionable to two plots purchased by her. Similar is the recital in the sale deeds under which the third respondent's vendor's vendor purchased the property. Even in the two sale deeds dated 31.07.1986 executed in favour of the vendors of the third respondent, the road portion has been apportioned between them equally at 200 square feet each. However, while Plot no.9 was transferred to the 3^rd respondent in the year 2017, the 400 square feet road potion was excluded and it was not conveyed to him. This is sought to be taken advantage of to contend that the road portion is still owned by his vendors and therefore, they have permitted him to occupy the said land.

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11.We do not think such a contention could be accepted. A perusal of the sale documents relating to the properties abutting the disputed road, shows that this was meant to be a road and it was being used as a road. In fact, the petitioner has paid consideration to the original promoters for 400 square feet of this disputed area also as per the recitals in their sale deed.

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12.Mr.Arul would however, contend that this property has not been gifted to the local authority, it cannot be treated as road. The lay out was prepared in the year 1974 and the area in question was a Village Panchayat at that time. The Panchayat Building Rules, which were in force and applicable at that time do not require a formal gift deed. Once an approval is

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https://www.mhc.tn.gov.in/judis _____________ Page 9 of 12_

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W.P.(MD) No.17656 of 2020

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granted showing some property as road, mere letter by the person who promotes the lay out stating that these properties has been classified as road is sufficient and an approval is granted only after such letter is given. The very fact that the lay out has been approved by the Panchayat as early as on 01.03.1974 itself would imply that the road has vested in the local body.

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13.We therefore, unable to accept the submission of Mr.Arul that since the road has not been gifted to the local authority, it still belongs to his vendors and hence, he cannot be said to have encroachment upon the road. We therefore conclude that the area in question measuring about 20 feet north - south and 40 feet east – west situated in between Plot nos.8 and 9 in the lay out plan approved by the Panchayat on 01.03.1974, is a public road and the third respondent has no right to errect any structure thereupon. We also find that the petitioner is entitled to use it as per the recitals in the sale deed in his favour as well as the third respondent. The fact that the area of 400 square feet has not been conveyed to the third respondent by his vendors would itself demonstrate that he has no right over the same except to use it as road.

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14.Hence, the Writ Petition will stand allowed. The respondent Corporation is directed to remove the encroachments after issuing notice to

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https://www.mhc.tn.gov.in/judis _____________ Page 10 of 12_

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W.P.(MD) No.17656 of 2020

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the third respondent as required under Section 128 of the Tamil Nadu Urban Local Bodies Act, within a period of 12 weeks from the date of receipt of copy of the order. The counsel for the Corporation shall advise the Officer incharge of eviction of encroachments to strictly follow the procedure prescribed under Section 128 of the Tamil Nadu Urban Local Bodies Act. Any deviation in this regard will be viewed seriously. No Costs. Consequently, connected miscellaneous petition is closed.

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[R.S.M., J.] [L.V.G., J.]

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05.09.2024

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NCC : Yes/No Index : Yes/No Internet : Yes Mrn

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1.The Corporation Commissioner, Madurai Corporation, Madurai – 625 002.

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2.The Assistant Commissioner, Zone – 2, Madurai Corporation, K.Pudur, Madurai City, Madurai.

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https://www.mhc.tn.gov.in/judis _____________ Page 11 of 12_

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W.P.(MD) No.17656 of 2020

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R.SUBRAMANIAN, J. and L.VICTORIA GOWRI, J.

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Mrn

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W.P.(MD) No.17656 of 2020

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05.09.2024

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https://www.mhc.tn.gov.in/judis _____________ Page 12 of 12_

Kamali Dinakaran v. the Corpn.Commissioner

Case brief

What is this about?

What did the court decide?

Kamali Dinakaran v. the Corpn.Commissioner

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

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