S. Janaki and Another Vs. The Chairman and Managing Director, Tamil Nadu Housing Board, Chennai and Others - Court Judgment

SooperKanoon Citationsooperkanoon.com/1189569
CourtChennai High Court
Decided OnJul-26-2016
Case NumberWrit Petition Nos. 14438 of 2013 & 6768 of 2016
JudgeT.S. Sivagnanam
AppellantS. Janaki and Another
RespondentThe Chairman and Managing Director, Tamil Nadu Housing Board, Chennai and Others
Excerpt:
(prayer: petitions under article 226 of the constitution of india praying for the issuance of writs of mandamus (i) prohibiting the respondents and their subordinate officials from in any manner utilizing or claiming any right over the petitioner private pathway in survey no.360/1, mogappair village, ambattur taluk formerly saidapet taluk or describing the same as their approach road and utilizing the same for obtaining approvals or building permit for any scheme in survey no.361/1 of mogappair village or any other land or project and allowing their allottees or officials to enter upon and utilize the said land in any manner (wp.no.14438 of 2013) and (ii) directing the 1st respondent authority to act upon the petitioner's application dated 18.12.2015 and grant transferable development right to the petitioner in proportion to the petitioner's land measuring 2020 sq.mtrs.(approximately 22000 sq.ft.) in old survey nos.360/1 and 361/2 and present survey nos. 360/1a1 and 361/2a1, mogappair village within a time to be stipulated by this court (wp.no.6768 of 2016).) common order 1. heard mr.s.thankasivan and mr.r.bharanidharan, learned counsel appearing for the writ petitioners, mr.b.vivekavanan, learned standing counsel appearing for the housing board, mr.n.sampath, learned counsel appearing for the chennai metropolitan development authority, mr.p.v. selvakumar, learned counsel appearing for the corporation and mr.s. diwakar, learned special government pleader appearing for the commissioner of police. 2. this case had a chequered history on account of certain earlier proceedings, which occurred before this court wherein this court entertained a genuine doubt as regards the bona fides of the petitioners in prosecuting the litigation. this led to orders being passed from time to time in the writ petitions and ultimately, by order dated 20.4.2016, this court directed the crime branch cid to investigate into the matter and submit a report with regard to the aspect as to whether there is a case of impersonation by the petitioners and as to whether there is an attempt to usurp the land owned by the government. 3. the deputy superintendent of police, cbcid, metro-i, chennai-8 conducted a thorough probe and submitted a detailed confidential report dated 16.6.2016. this court has carefully gone through the report, from which, it is seen that the investigating officer, on thorough enquiry, found that there is no impersonation on the part of the writ petitioners namely mrs.s.janaki and mrs.cicilia francis. this court places on record its appreciation as to the effective manner, in which, the deputy superintendent of police, cbcid metro-i, chennai-8 has taken steps and submitted his report. the report filed by the deputy superintendent of police, cbcid, metro-i, chennai-8 along with the documents relied upon by the investigating officer shall form part of the record and no further orders are required on the said aspect and it is held that there is no case of impersonation on the part of the petitioners. 4. having steered ourselves clear of this factual position, now it has to be seen as to what relief the petitioners are entitled in the writ petitions. 5. mrs.cicilia francis - the petitioner in wp.no.6768 of 2016 - seeks a direction to the chennai metropolitan development authority to consider her application dated 18.12.2015 for grant of transferable development right (tdr) in proportion to her land measuring 2020 sq.m. in old survey nos. 360/1 and 361/2 and present survey nos.360/1a1 and 361/2a1, mogappair village. 6. mrs.janaki - the petitioner in w.p.no.14438 of 2013 seeks a writ of prohibition to prohibit the officials from claiming any right over a pathway, which is claimed to be a private pathway in s.f.no.360/1, mogappair village, ambattur taluk or describing the same as their approach road and utilizing the same for obtaining approvals or building permit for any scheme in the said survey number or any other land or project and allowing their allottees or officials to enter upon and utilize the said land in any manner. 7. the reliefs sought for in both the writ petitions are not inconsistent with each other. in order to make things clear, this court perused the rough sketch produced by the petitioner in w.p.no.6768 of 2016 - mrs.cicilia francis in the additional typed set of papers, from which, it is seen that mrs.cicilia francis retained ownership over the properties comprised in s.f. nos.360/1 and 361/2, as she succeeded in the litigation initiated against the land acquisition proceedings. her husband - mr.francis, who owned the properties in s.f.nos.360/2, 361/1 and 363, was unsuccessful in the challenge and the housing board acquired the properties. in this litigation, this court is concerned only with the properties in s.f.nos.360/1, 361/2 and 361/1. the housing board had already constructed flats in s.f.no.361/1. 8. the attempt made by the petitioner in w.p.no.6768 of 2016 - mrs.cicilia francis to seek re-conveyance of the said lands in s.f.no.360/1, as the legal heir of her husband - the said francis, was not successful. mrs.cicilia francis sold a portion of the property in s.f.no.360/1 to mrs.janaki. 9. now, the issue would be as to whether the road, which is already in existence, from an arch describing the layout as janaki garden arch, is a private road or a public road. however, though this court cannot adjudicate that disputed question of fact in these writ petitions, this court would be inclined to take note of the manner, in which, the corporation of chennai and the chennai metropolitan development authority have dealt with the issue. 10. pursuant to the applications given by both the petitioners herein dated 24.6.2013, the zonal officer of zone-vii (ambattur), chennai corporation, sent a communication to the petitioners dated 9.7.2013, the relevant portion of which, reads as follows : ( tamil ) 11. in pursuance of the said communication dated 9.7.2013, the chennai metropolitan development authority addressed to the commissioner, corporation of chennai, a letter dated 25.10.2013 with copies marked to the petitioners herein. for better appreciation, the entire letter dated 25.10.2013 is quoted herein below : "we are in receipt of requisition 1st cited from tvl.s.janaki and cicilia francis requesting issue of tdr in lieu of three streets formed by them in a layout that is proposed to be gifted by these applicants to chennai corporation to make it as a public street. they are requesting issue of tdr for an extent of 22,000 sq.ft. a copy of the letter 1st cited along with a copy of enclosures as well as a sketch indicating the roads referred in the requisition letter and the letter 2nd cited are enclosed for ready reference. 2. on examination of the documents and details attached with the application, it appears that the applicants purchased two portions of land comprising an extent of 162 cents in s.no.360/1 of mogappair village and 91 cents in s.no.361/2 of mogappair village in 1978 and formed a layout called janaki garden leaving three streets for the purpose of providing access to individual plots in this layout area. the applicants claim that these streets are formed by them as private pathway and the residential buildings constructed on the plots for this private layout are in possession with them. from the letter 2nd cited, it is understood that in case the applicants hand over these streets through gift deed to chennai corporation, these streets will be included in the list of streets. 3. with the above background information, the application 1st cited is forwarded along with enclosures with a request to examine the applicants' request for issue of tdr for the streets with reference to provision of development regulation for issue of tdr and forward it to this office on merit." 12. in response to the said communication dated 25.10.2013, the commissioner, corporation of chennai addressed a letter dated 2.1.2014 to the chennai metropolitan development authority, the relevant portion of which reads as follows : "on accounting all the above information, if the owner of janaki garden gifts the land by way of gift deed, then it will be taken over through the council and it will be included in the list of street of ward no.93. the applicant is directed as per their request to approach chennai metropolitan development authority and to get the benefits to transferable development rights if the applicant is eligible according to title and merits." 13. thus, the issue would be as to whether the road is a public road or a private road. prima facie, from the above referred to communications, it appears that the road has not been gifted to the local body i.e erstwhile ambattur municipality and presently the corporation of chennai and this aspect is forthcoming from the communications referred to above. however, at this juncture, this court does not propose to render any finding in this regard, as the competent authority to decide the issue is the chennai metropolitan development authority. 14. in the light of the above, the writ petitions are disposed of by directing the chennai metropolitan development authority to consider the application dated 18.12.2015 made by the petitioner in wp.no.6768 of 2016 - mrs.cicilia francis for the issue of transferable development right in lieu of street formation in residential road called janaki garden arch in mogappair and while doing so, the petitioners shall be afforded an opportunity of personal hearing and permitted to be represented by an authorized representative well acquainted with the factual details. similarly, the chennai metropolitan development authority shall also hear the officials of the tamil nadu housing board in the matter, as the rights of 48 purchasers of the flats, which have been developed by the tamil nadu housing board in s.f.no. 361/1 are involved. after hearing the parties, the chennai metropolitan development authority shall pass a speaking order within a period of three months from the date of receipt of a copy of this order and communicate the same to the petitioners as well as the tamil nadu housing board. no costs.
Judgment:

(Prayer: Petitions under Article 226 of the Constitution of India praying for the issuance of Writs of Mandamus (i) prohibiting the respondents and their subordinate officials from in any manner utilizing or claiming any right over the petitioner private pathway in Survey No.360/1, Mogappair Village, Ambattur Taluk formerly Saidapet Taluk or describing the same as their approach road and utilizing the same for obtaining approvals or building permit for any scheme in Survey No.361/1 of Mogappair Village or any other land or project and allowing their allottees or officials to enter upon and utilize the said land in any manner (WP.No.14438 of 2013) and (ii) directing the 1st respondent authority to act upon the petitioner's application dated 18.12.2015 and grant transferable development right to the petitioner in proportion to the petitioner's land measuring 2020 sq.mtrs.(approximately 22000 sq.ft.) in Old Survey Nos.360/1 and 361/2 and present Survey Nos. 360/1A1 and 361/2A1, Mogappair Village within a time to be stipulated by this Court (WP.No.6768 of 2016).)

Common Order

1. Heard Mr.S.Thankasivan and Mr.R.Bharanidharan, learned counsel appearing for the writ petitioners, Mr.B.Vivekavanan, learned Standing Counsel appearing for the Housing Board, Mr.N.Sampath, learned counsel appearing for the Chennai Metropolitan Development Authority, Mr.P.V. Selvakumar, learned counsel appearing for the Corporation and Mr.S. Diwakar, learned Special Government Pleader appearing for the Commissioner of Police.

2. This case had a chequered history on account of certain earlier proceedings, which occurred before this Court wherein this Court entertained a genuine doubt as regards the bona fides of the petitioners in prosecuting the litigation. This led to orders being passed from time to time in the writ petitions and ultimately, by order dated 20.4.2016, this Court directed the Crime Branch CID to investigate into the matter and submit a report with regard to the aspect as to whether there is a case of impersonation by the petitioners and as to whether there is an attempt to usurp the land owned by the Government.

3. The Deputy Superintendent of Police, CBCID, Metro-I, Chennai-8 conducted a thorough probe and submitted a detailed confidential report dated 16.6.2016. This Court has carefully gone through the report, from which, it is seen that the Investigating Officer, on thorough enquiry, found that there is no impersonation on the part of the writ petitioners namely Mrs.S.Janaki and Mrs.Cicilia Francis. This Court places on record its appreciation as to the effective manner, in which, the Deputy Superintendent of Police, CBCID Metro-I, Chennai-8 has taken steps and submitted his report. The report filed by the Deputy Superintendent of Police, CBCID, Metro-I, Chennai-8 along with the documents relied upon by the Investigating Officer shall form part of the record and no further orders are required on the said aspect and it is held that there is no case of impersonation on the part of the petitioners.

4. Having steered ourselves clear of this factual position, now it has to be seen as to what relief the petitioners are entitled in the writ petitions.

5. Mrs.Cicilia Francis - the petitioner in WP.No.6768 of 2016 - seeks a direction to the Chennai Metropolitan Development Authority to consider her application dated 18.12.2015 for grant of transferable development right (TDR) in proportion to her land measuring 2020 sq.m. in Old Survey Nos. 360/1 and 361/2 and present Survey Nos.360/1A1 and 361/2A1, Mogappair Village.

6. Mrs.Janaki - the petitioner in W.P.No.14438 of 2013 seeks a Writ of Prohibition to prohibit the officials from claiming any right over a pathway, which is claimed to be a private pathway in S.F.No.360/1, Mogappair Village, Ambattur Taluk or describing the same as their approach road and utilizing the same for obtaining approvals or building permit for any scheme in the said survey number or any other land or project and allowing their allottees or officials to enter upon and utilize the said land in any manner.

7. The reliefs sought for in both the writ petitions are not inconsistent with each other. In order to make things clear, this Court perused the rough sketch produced by the petitioner in W.P.No.6768 of 2016 - Mrs.Cicilia Francis in the additional typed set of papers, from which, it is seen that Mrs.Cicilia Francis retained ownership over the properties comprised in S.F. Nos.360/1 and 361/2, as she succeeded in the litigation initiated against the land acquisition proceedings. Her husband - Mr.Francis, who owned the properties in S.F.Nos.360/2, 361/1 and 363, was unsuccessful in the challenge and the Housing Board acquired the properties. In this litigation, this Court is concerned only with the properties in S.F.Nos.360/1, 361/2 and 361/1. The Housing Board had already constructed flats in S.F.No.361/1.

8. The attempt made by the petitioner in W.P.No.6768 of 2016 - Mrs.Cicilia Francis to seek re-conveyance of the said lands in S.F.No.360/1, as the legal heir of her husband - the said Francis, was not successful. Mrs.Cicilia Francis sold a portion of the property in S.F.No.360/1 to Mrs.Janaki.

9. Now, the issue would be as to whether the road, which is already in existence, from an arch describing the layout as Janaki Garden Arch, is a private road or a public road. However, though this Court cannot adjudicate that disputed question of fact in these writ petitions, this Court would be inclined to take note of the manner, in which, the Corporation of Chennai and the Chennai Metropolitan Development Authority have dealt with the issue.

10. Pursuant to the applications given by both the petitioners herein dated 24.6.2013, the Zonal Officer of Zone-VII (Ambattur), Chennai Corporation, sent a communication to the petitioners dated 9.7.2013, the relevant portion of which, reads as follows :

( Tamil )

11. In pursuance of the said communication dated 9.7.2013, the Chennai Metropolitan Development Authority addressed to the Commissioner, Corporation of Chennai, a letter dated 25.10.2013 with copies marked to the petitioners herein. For better appreciation, the entire letter dated 25.10.2013 is quoted herein below :

"We are in receipt of requisition 1st cited from Tvl.S.Janaki and Cicilia Francis requesting issue of TDR in lieu of three streets formed by them in a layout that is proposed to be gifted by these applicants to Chennai Corporation to make it as a public street. They are requesting issue of TDR for an extent of 22,000 sq.ft. A copy of the letter 1st cited along with a copy of enclosures as well as a sketch indicating the roads referred in the requisition letter and the letter 2nd cited are enclosed for ready reference.

2. On examination of the documents and details attached with the application, it appears that the applicants purchased two portions of land comprising an extent of 162 cents in S.No.360/1 of Mogappair Village and 91 cents in S.No.361/2 of Mogappair Village in 1978 and formed a layout called Janaki Garden leaving three streets for the purpose of providing access to individual plots in this layout area. The applicants claim that these streets are formed by them as private pathway and the residential buildings constructed on the plots for this private layout are in possession with them. From the letter 2nd cited, it is understood that in case the applicants hand over these streets through gift deed to Chennai Corporation, these streets will be included in the list of streets.

3. With the above background information, the application 1st cited is forwarded along with enclosures with a request to examine the applicants' request for issue of TDR for the streets with reference to provision of Development Regulation for issue of TDR and forward it to this office on merit."

12. In response to the said communication dated 25.10.2013, the Commissioner, Corporation of Chennai addressed a letter dated 2.1.2014 to the Chennai Metropolitan Development Authority, the relevant portion of which reads as follows :

"On accounting all the above information, if the owner of Janaki Garden gifts the land by way of gift deed, then it will be taken over through the Council and it will be included in the list of street of ward No.93. The applicant is directed as per their request to approach Chennai Metropolitan Development Authority and to get the benefits to Transferable Development Rights if the applicant is eligible according to title and merits."

13. Thus, the issue would be as to whether the road is a public road or a private road. Prima facie, from the above referred to communications, it appears that the road has not been gifted to the Local Body i.e erstwhile Ambattur Municipality and presently the Corporation of Chennai and this aspect is forthcoming from the communications referred to above. However, at this juncture, this Court does not propose to render any finding in this regard, as the Competent Authority to decide the issue is the Chennai Metropolitan Development Authority.

14. In the light of the above, the writ petitions are disposed of by directing the Chennai Metropolitan Development Authority to consider the application dated 18.12.2015 made by the petitioner in WP.No.6768 of 2016 - Mrs.Cicilia Francis for the issue of transferable development right in lieu of street formation in residential road called Janaki Garden Arch in Mogappair and while doing so, the petitioners shall be afforded an opportunity of personal hearing and permitted to be represented by an authorized representative well acquainted with the factual details. Similarly, the Chennai Metropolitan Development Authority shall also hear the officials of the Tamil Nadu Housing Board in the matter, as the rights of 48 purchasers of the flats, which have been developed by the Tamil Nadu Housing Board in S.F.No. 361/1 are involved. After hearing the parties, the Chennai Metropolitan Development Authority shall pass a speaking order within a period of three months from the date of receipt of a copy of this order and communicate the same to the petitioners as well as the Tamil Nadu Housing Board. No costs.