V.Yasodaa Vs The Commissioner

Writ Petition filed under Article 226 of the Constitution of India issuing writ of certiorari calling for the records relating to Order No. Nil dated 25.02.2021 and Order in Na. Ka. No.21555 / 2021 / H.1(M) signed on 17.04.2023 (but erroneously dated 17.04.2022) issued by the First Respondent, and quash the same.

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For Petitioner(s): Mr.PVS.Giridhar Senior Counsel for M/s.PVS.Giridhar Associates

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For Respondent(s): Mr.Najeeb Usman Khan Standing Counsel Takes Notice For R1

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

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WP No. 13724 of 2023

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ORDER

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(Order of the Court was made by S.M.Subramaniam J.)

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Writ petition on hand has been instituted challenging the final show cause notice issued by the Commissioner, Coimbatore Corporation, asking the petitioner to vacate and hand over the encroached portion of the public purpose land as per the approved layout, failing which, enforcement action will be completed by evicting the petitioner from the subject property.

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Learned Senior Counsel appearing for the petitioner would mainly contend that the respondents have issued the impugned notice based on the judgment and decree passed in Second Appeal No. 510 of 2019 and 518 of 2019, dated 26.04.2019, which was confirmed by the Hon’ble Supreme Court of India. In the said civil proceedings, the petitioner’s land was not included in the suit schedule property. Therefore, by referring to the said order, the Corporation ought not to have issued the impugned notice. Further, he would contend that the petitioner is a purchaser of the plot. Therefore, he cannot be construed as an encroacher.

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Learned Standing Counsel appearing for the Coimbatore Corporation would oppose by stating that, as per the approved layout, only 86 residential plots are approved and Plots A and B are reserved for public purposes. The petitioner is in occupation of Plot No. 87(A), which is reserved for public purpose. The public purpose land vests with the Corporation. Therefore, the

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WP No. 13724 of 2023

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petitioner and other persons, who were in occupation are treated as encroachers. All other encroachments, were removed, and the petitioner alone is in occupation of the public purpose land. Thus, notice issued is in accordance with law and the writ petition is liable to be rejected.

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Perusal of the approved layout, which was approved by the erstwhile Coimbatore Municipality in T.S. Nos. 158/2, 159/2 part, 163 of ward 10, would show that only 86 residential plots are approved and as per the submission of the learned Standing Counsel for the 1^st respondent, the public purpose area has been converted as residential plots, and a few persons have encroached upon the same. The said layout has been approved in the year 1971. That apart, the purchase of public purpose land is null and void.

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This Court is of the considered view that civil rights between the parties need not be decided by the High Court in a writ proceedings under Article 226 of the Constitution of India. It is not in dispute that yet another similarly placed person, who had purchased the common purpose area, instituted a civil suit, and the matter went up to the Hon’ble Supreme Court of India, and issues were decided in favour of the Corporation. Consequently, all those persons were evicted from the common purpose area and in respect of the petitioner citing the said order of the Hon’ble Supreme Court of India, a separate show cause notice was initially issued on 25.02.2021, and subsequently, the impugned final show cause notice dated 17.04.2023 has

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WP No. 13724 of 2023

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been issued. Mere show cause notice would provide no cause for instituion of writ proceedings.

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Public purpose land, including OSR street in an approved layout and its maintenance and protection are settled by the Hon’ble Supreme Court of India in the case of Association of Vasanth Apartment’s Owners Vs V. Gopinanth And Others¹ . All the public purpose lands are to be protected for the benefit of the public in a layout. Conversion of public purpose land into residential plots is impermissible.

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However, in the present case, the petitioner states that he is a bona fide purchaser. If at all, such purchase occurred on account of misrepresentation, fraud, etc., the remedy lies against the vendor. In respect of public purpose land in an approved layout, land vests with the local authority.

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In any event, the respondent has issued a final show cause notice, and on account of efflux of time, this Court is inclined to grant further time of two weeks from the date of receipt of a copy of this order to the petitioner to submit further explanation along with documents, if any, to the respondent Corporation.

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1 (2023 INSC 123)

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

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WP No. 13724 of 2023

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On receipt of any such representation, the same may be considered by the respondent Corporation, and thereafter, they shall proceed with enforcement action, if the subject portion of the land under the occupation of the petitioner is a common purpose area. All other grounds raised by the petitioner are left open to him to raise before the authority.

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