Madras High Court
Sadakathullah Appa College vs The Special Commissioner on 28 April, 2022
W.P(MD)No.13742 of 2010
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 28.04.2022
CORAM:
THE HONOURABLE MR.JUSTICE B.PUGALENDHI
W.P(MD)No.13742 of 2010 and
MP(MD) No. 2 of 2010
Sadakathullah Appa College,
Represented by its
Secretary and Correspondent,
T.E.S Fathu Rabbani,
S/o Seyadu Rowther,
Rahmath Nagar,
Tirunelveli. Petitioner
Vs.
1.The Special Commissioner,
Town and Country Planning Department,
Chennai – 2.
2.The District Collector (cum) The President,
Local Planning Authority,
108, Trivendrum Road,
Tirunelveli – 2.
3.The Secretary and Member,
Local Planning Authority,
108, Trivendrum Road,
Tirunelveli – 2.
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W.P(MD)No.13742 of 2010
4.Rahmath Nagar Welfare Association,
(Registered Society under Regn.No.39 of 2000,
Through its Secretary,
Dhanasekaran, S/o Paramasivan,
89/K, 40 Feet road,
Rahmath Nagar,Tirunelveli – 11,
Tirunelveli District. Respondents
(R4 is impleaded vide Court order dated 13.02.2017, in WMP(MD) No.1 of 2013)
PRAYER: Writ Petition filed under Article 226 of the Constitution of
India, seeking for issuance of a Writ of Certiorarified Mandamus, calling for
the records of the second and third respondents herein in their proceedings
in Resolution No.11, dated 30.06.2010 and quash the same and further
forbearing the respondents herein from interfering with the right of the
petitioner's College, over the land in S.No.738, Rahmath Nagar,
Palayamkottai, Tirunelveli.
For Petitioner : Mr.M.Vallinayagam
For R1 to R3 : Mr.A.Baskaran
Additional Government Pleader
For R4 : Mr.V.Kannan
ORDER
This writ petition is filed by the Secretary and Correspondent
of Sadakathullah Appa College, Rahmath Nagar,Tirunelveli as against the
Resolution No.11, dated 30.06.2010 and quash the same and for
consequential relief restraining the respondents from interfering with the
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W.P(MD)No.13742 of 2010
rights of the petitioner College over the land in Survey No.738, Rahmath
Nagar, Palayamkottai, Tirunelveli.
2.In the impugned Resolution, the third respondent/the
Secretary and Member, Local Planning Authority, Tirunelveli passed a
Resolution, directing the petitioner College to hand over a land within the
campus of the College, which is equivalent to an extent of 40 feet and 60
feet roads, detached from 70 feet road in east west direction, having total
area of 10,900 sq.mtr (269 cents) and 7090 sq.mtr (175 cents) allocated for
OSR to a total extent of 17,990 sq.mtr, to the Corporation for the purpose of
carrying out a public welfare Scheme. Aggrieved over this Resolution, the
present writ petition is filed.
3.Mr.M.Vallinayagam, learned Senior Counsel appearing for
the petitioner College submits that the land in Survey No.738 of
Palayamkottai Village was originally a Tank by name “Nari Illanthaikulam
Tank”. The said Survey No.738 is situated adjacent to the petitioner
College. The Tank became disused. Since the land in S.No.738 lies adjacent
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W.P(MD)No.13742 of 2010
to the College, the petitioner College made an application to the
Government, seeking assignment of the land, for the purpose of expansion
of the College. The Government initially permitted the College to enter
possession of the entire land in Survey.No.738 for construction of buildings
for hostel and college, pending finalization of alienation proposal, vide
G.O.Ms.No.2071, Revenue ((L1) Department, dated 21.07.1972.
Accordingly, 3 acres of land has been assigned in Survey No.738, for the
purpose of expanding the College, on payment of land tax and the
remaining 28.52 acres of land has been assigned free of land tax. Thus, the
original character of the land in Survey No.738 had been changed by sub
dividing the same into 738/1 and 738/2. Ever since the assignment, the land
in Survey No.738 belongs to the petitioner College under law and also the
name of the petitioner College has been entered in all revenue records. It is
pertinent to note that neither the conversion of the land from the character of
Tank nor the assignment of the land in Survey No.738 in favour of the
petitioner College has been questioned or challenged by any one till date.
Therefore, the land in Survey No.738 was a Tank till 1972 and thereafter the
same is the property of the petitioner College.
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W.P(MD)No.13742 of 2010
3.1.The learned senior counsel further submits that the
impugned resolution has been passed by the third respondent, based on the
approved layout of the year 1968. The Promoters of Rahmath Nagar,
Palayamkottai obtained an approval by citing that the land in Survey No.738
as well as a road crossing the land are also their land. When the land in
Survey No.738 was a tank in the year 1968, the Promoters of Rahmath
Nagar, who are not having any right over the land is not entitled to prepare
the layout citing this land as a road. He further submits that a Society, by
name, Consumer Protection Council filed a writ petition in W.P.No.9710 of
2005, on the file of this Court to issue a writ of Mandamus, directing the
authorities to remove the construction made by the petitioner College,
which was shown as road in the layout and also remove all the
encroachments and take over the land earmarked for public purpose in the
layout. The main contention of the petition in W.P.No.9710 of 2005 is that
the petitioner College encroached upon the entire tank measuring about 31
acres and has constructed a compound wall covering the tank within its
boundary, thereby preventing the public access to the said tank. The main
contention in the said writ petition is that since the land in Survey No.738
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W.P(MD)No.13742 of 2010
having been classified as tank and belonging to the Government, no private
party can be permitted to use the same for other purpose, other than storing
water. The petitioner College defended the writ petition that the lands in
Survey No.738 was already alienated to the College, by Government orders
and the now College is in possession of the lands and constructed buildings.
The said writ petition was dismissed by the Principal Seat of this Court on
02.03.2007, with the following observations:-
12.So far as the Rahmath Nagar is concerned, there is an
approved layout, which is sought to be modified by the fifth
respondent. There is factual dispute with regard tot he
existence of roads passing through S.No.738 of
Palayamkottai Village. According to the fifth respondent, the
alleged roads were wrongly shown in the layout of Rahmath
Nagar and actually no road is passing through the said
survey number and the fifth respondent is exclusively using
the same for college and hostel purposes as per the
Government orders.
13.In view of the factual disputes, we are not in a position to
go into the matter. The appropriate planning authority is
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W.P(MD)No.13742 of 2010
directed to consider the issue and pass necessary orders,
after hearing the parties in accordance with law. We are not
expressing any opinion as to whether there are roads passing
through S.No.738, Palayamkottai Village or not, and also not
expressing any opinion as to whether the approval of layout
of Rahmath Nagar of the year 1968, modified in the year
1978 is valid or not. If there is any finding by the appropriate
authority that there were roads, which were allegedly
encroached, it is open to the petitioner to move the
appropriate authority in accordance with law”
3.2.The learned senior counsel further submits that
consequently, this resolution was passed by the third respondent, after
providing an opportunity to the petitioner and the fourth respondent and the
same is under challenge in this writ petition. The learned senior counsel has
framed his point that the land in Survey No.738 was alienated to the
petitioner College, vide Government Orders in G.O.Ms.No.2071, Revenue
(L1) Department, dated 21.07.1972 and G.O.Ms.No.360, Revenue
Department, dated 10.06.1983 and the College has also put up buildings in
the land. The road claimed by the fourth respondent Association is running
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W.P(MD)No.13742 of 2010
in middle of the College, which would affect the entire atmosphere of the
College. He further submits that the land was originally classified as
'Kulam' and the Promoters of Rahmath Nagar are not having any authority
to draw a plan citing the road in the middle of the water body and cannot
claim any right over the land, based on the approval granted by the Town
and Country Planning Authority, without proper assignment of the land to
the promoters of Rahmath Nagar. The approval granted by the Town and
Country Planning authority in the year 1968 is only a technical approval,
based on the layout submitted by them and it will not confer any right over
the property by the fourth respondent. The learned senior counsel draws the
attention of this Court that as per Section 38 of Tamil Nadu Town and
Country Planning Act, 1971, even if any land reserved, allotted or
designated for any purpose specified in a Regional plan, master plan,
detailed development plan or new town development plan covered by such
notice or such land is not acquired by agreement, such land shall be deemed
to be released from such reservation, allotment or designation. The learned
counsel has also relied on the following judgments in order to substantiate
his contentions.
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W.P(MD)No.13742 of 2010
● Pillayar P.K.V.K.N Trust through Ramanathan Vs.Karpaga
N.N.U.S. Rep by Secretary and others, reported in (2010) 9 SCC
● Raju S.Jethmalani and others Vs.State of Maharashtra and others,
reported in, (2005) 11 Supreme Court Cases 222.
4.Mr.A.Baskaran, learned Additional Government Pleader
appearing for the respondents 1 to 3 submits that Rahmath Nagar layout was
approved in the year 1968 in reference No.LPH/DTP/15/68 and further it
was revised in the year 1978 as LPR(TK) 45/78 by the Director of Town &
Country Planning. The layout provides for several roads ranging from 80
feet width to 30 feet width and there is a 70 feet breadth road running
through the middle of the said layout in west direction through Survey No.1,
702, 738, 735 and also there is another 60 feet road in the north south
direction coming across the 70 feet road of Rahmath Nagar. The area shown
as road in Rahmath Nagar Layout in S.No.738 belonging to College
Management is published in the Gazette Notification as mentioned in the
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W.P(MD)No.13742 of 2010
detailed development plan. He further submits that the Commissioner,
Tirunelveli Corporation sent a notice to the petitioner on 30.11.2005 to
remove the encroachment in the lands allocated for roads and public
purpose. The petitioner filed writ petition in W.P.No.115 of 2006 and
prayed for issuing a writ of mandamus directing the respondents 1 to 4
therein to modify the layout approved under No.LPH/DTP.No.15/68 and
LPR(TK) 45/78 in S.No.696 to 742 of Palayamkottai (Rural Village),
Tirunelveli Corporation, by deleting the portion of land shown as road in
S.No.738, Palayamkottai (Rural Village). He further submits that the
Secretary/Sadakathullah Appa College in their letter dated, 07.08.2009
denoted that they have no objection to hand over 10 cents of land in the
west of Survey No.738, for construction of water tank for public purpose
and through this letter, the Secretary of the College has given his consent to
the corporation to take over the land for the construction of water tank for
the welfare of public. But the petitioner did not hand over the same.
Therefore, the authorities decided to take over the land, which is allocated
for the public purpose and a meeting was also held on 11.08.2010 before the
District Collector of Tirunelveli. The College Management stated that they
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W.P(MD)No.13742 of 2010
would reply after the management meeting on 17.08.2010. But there was no
reply after the management meeting. The handing over of the exact area to
the corporation may divide the college into two parts. Hence, the authorities
asked the Management of the College to hand over the land, which is
equivalent to 17,990 sq.mtr (4.44 acres) belonging to the College.
4.1.The learned Additional Government Pleader further
submits that this Resolution has been passed pursuant to the orders passed
by this Court in W.P.No.9710 of 2005, wherein, it was held as follows:-
“10.The point in issue is whether the fifth respondent is in
lawful possession of the lands in Survey No.738 and
whether there were roads in the layout at Rahmath Nagar
and the fifth respondent put up construction by obstructing
the roads.
11.It is not in dispute that by G.O.Ms.No.2071, Revenue
Department, dated 21.07.1972, the fifth respondent was
given possession of the lands to an extent of 31.52 acres in
S.No.738 of Palayamkottai Village for construction of
College building and hostel, pending finalization of
alienation proposals. According to the learned senior
counsel for the fifth respondent, alienation was made by
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the Revenue Department. The Government has given
possession of the said lands for educational institution,
which admittedly is a public purpose. Though the fifth
respondent college constructed college building and hostel
and college is functioning for the past several years, long
prior to formation of the petitioner society in the year
1996, the Government having given possession of the
lands to the fifth respondent and the same having been
utilised by constructing college building and hostel, the
petitioner has no locus standi to maintain this writ
petition, particularly when the Government order giving
possession is not questioned. The allegation made by the
petitioner that the tank poromboke cannot be allowed to
be encroached by anyone is not sustainable in view of the
fact that re-classification was made by the Revenue
Department and the fifth respondent was given possession
of the lands to construct the College building and hostel.”
4.2.He further submits that as against the proceedings, dated
16.07.2010 and the Resolution dated 30.06.2010, the petitioner is having an
effective remedy of statutory appeal under Section 101 of the Tamil Nadu
Town and Country Planning Act, 1971.
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5.Mr.V.Kannan, learned counsel appearing for the fourth
respondent/Rahmath Welfare Association submits that the writ petition
itself is not maintainable, when there is an effective alternate remedy
available to the petitioner, under the Act. He further submits that Rahmath
Nagar was approved in the year 1968 itself, whereas, the petitioner College
was established only by purchasing the lands from the approved layout of
Rahmath Nagar. The layout was approved by the competent authority/ the
third respondent herein and that was not challenged by the petitioner at any
point of time. The petitioner College has encroached the land in Survey No.
738 and also the lands in adjacent Survey Nos.700 to 703 of Rahmath Nagar
approved layout, which were originally reserved for public purpose. Based
on this approved layout, more than 1000 people have purchased plots,
constructed houses by investing huge amount. But they have been prevented
from access to the main road, due to the encroachment made by the
petitioner College. The learned counsel disputed that the subject land is a
water body. If it is a water body, it cannot be converted or alienated.
Though the petitioner College claims that the land in Survey No.738 was
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W.P(MD)No.13742 of 2010
alienated to the petitioner, there is no proceedings to that effect.
G.O.Ms.No.2071, Revenue (L1) Department was only a permission for
enter upon the land pending alienation proceedings and the petitioner has
not placed any other Government orders alienating these lands in favour of
the petitioner College. In the absence of any specific order with regard to
the alienation of the lands to the petitioner College by the Government, the
petitioner College is not having any right to hold these lands. If the
contention of the petitioner is accepted that it was a water body, then there
cannot be any alienation without conversion of the land. No such orders to
that effect is placed before the Court. Therefore, the petitioner's Association
representing the majority of the common public, who purchased the lands
pursuant to the approved layout are entitled for a road and since this
petitioner is an encroacher, they are not having any right over the land in
Survey No.738. Hence, this writ petition is liable to be dismissed.
6.This Court considered the rival submissions made and also
perused the materials placed on record.
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W.P(MD)No.13742 of 2010
7.This writ petition is filed by Sadakathullah Appa College,
Rahmath Nagar,Tirunelveli, as against the Resolution dated 30.06.2010 of
the third respondent, directing the College Management to hand over a
portion of the land equivalent to an extent of 17990 sq.mtr in Survey No.
738, Rahmath Nagar to the Corporation for the purpose of carrying out a
public welfare Scheme. This Resolution was passed by the third respondent,
pursuant to the directions of this Court in W.P.No.9710 of 2005, dated
02.03.2007. The Division Bench of this Court dismissed a similar writ
petition filed by the Consumer Protection Council, Rahmath Nagar,
Tirunelveli with certain observations as stated supra. Thereafter, the third
respondent passed this Resolution to hand over the land, which was
alienated, allocated for public purpose to a total extent of 17990 sq.mtrs.
The third respondent has also passed a Resolution in D.No.361/2002 TVL,
dated 09.04.2002, wherein, a request was made by the petitioner herein to
remove the 70 feet road. Resolution was passed based on the application of
this petitioner that the land in Survey No.738, to an extent of 31.52 acres
was already assigned to the petitioner College, vide G.O.2071 Revenue
(L1), dated 21.07.1972 and the College has taken over the land and put up
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W.P(MD)No.13742 of 2010
fencing and this 70 feet road approved in approved layout LP/R TK 45/78 is
running in the middle of the College and also not having any important use
and recommended for removing this road from the approved layout. The
petitioner College has filed a writ petition for a direction for implementation
of the resolution dated 09.04.2002 in W.P.No.115 of 2006. In the meantime,
the above Public Interest Litigation was filed by the Consumer protection
Council in W.P.No.9710 of 2005 and the Division Bench reheard the
matters together and ordered for posting of all these matters before the
Principal Seat. Thereafter, by order dated 02.03.2007, W.P.No.9710 of 2005
was dismised by this Court. However, the stage of the other writ petition
filed by the petitioner in W.P.No.115 of 2006 could not be ascertained.
8.The petitioner claims that the land in Survey No.738 was a
water body assigned to the petitioner's College for its expansion. This was
disputed by the fourth respondent that it is not a water body and it is only a
Government poromboke land and never assigned to this petitioner. The
order referred by the petitioner is only an enter upon permission, pending
assignment proposals and it would not give any right to the petitioner to
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W.P(MD)No.13742 of 2010
enjoy the property as that of an assignment. The Board of Revenue by
proceedings RT No.2561 E 315/1972, made a recommendation for
cancellation of Government memo No. 87648/A1/64/53, Revenue, dated
04.11.1971 and a permission was granted and to assign the land in favour of
the petitioner college. The petitioner college, who was permitted to enter
upon the land measuring an extent of 31.52 acres in Survey No.738,
Palayamkottai Village, Tirunelveli Taluk and District for construction of
College building and hostel building pending finalization of alienation
proposals by G.O(Ms) No. 2071, Revenue (L1), dated 21.07.1972. This
placement order has been approved by the Government in the year 1975, as
per G.O.Ms.No.324, Revenue Department, dated 17.02.1975 and for fixing
the land revenue to be paid by the College. For fixing the land tax, the
Government passed a Government order in G.O.Ms.No.360, Revenue
Department, dated 10.06.1983, fixed the land tax for 3 acres, which are used
as hostel and staff quarters among the total 31.52 acres and waived the
remaining 28.50 acres of land used for general purpose with a rider that it
would be taxed depending upon the usage. Admittedly, the remaining land
was used for general activities of the College. From this Government order,
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W.P(MD)No.13742 of 2010
it could be inferred that the lands in S.No.738, Palayamkottai Village was
already alienated to the College. Without disputing the earlier Government
Order referred supra, the third respondent is not entitled to pass the
impugned resolution and therefore it is liable to be quashed.
9.In view of the foregoing discussions, this writ petition is
allowed and the impugned Resolution No.11, dated 30.06.2010 of the third
respondent is quashed. The respondents are at liberty to approach the
Government for modification of the earlier Government Orders with regard
to the un-assessed land in Survey No.738. No costs. Consequently,
connected Miscellaneous Petition is closed.
28.04.2022
Index : Yes / No.
Internet: Yes / No.
vrn
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W.P(MD)No.13742 of 2010
To
1.The Special Commissioner,
Town and Country Planning Department,
Chennai – 2.
2.The District Collector (cum) The President,
Local Planning Authority,
108, Trivendrum Road,
Tirunelveli – 2.
3.The Secretary and Member,
Local Planning Authority,
108, Trivendrum Road,
Tirunelveli – 2.
4.Rahmath Nagar Welfare Association,
(Registered Society under Regn.No.39 of 2000,
Through its Secretary,
Dhanasekaran,
S/o Paramasivan,
89/K, 40 Feet road,
Rahmath Nagar,
Tirunelveli – 11,
Tirunelveli District.
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W.P(MD)No.13742 of 2010
B.PUGALENDHI, J.
vrn
Order made in
W.P(MD)No.13742 of 2010 and
MP(MD) No. 2 of 2010
28.04.2022
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