Madras High Court
T.S.Thiyagaraja Gurukkal ... vs The Director Of Town Panchayat on 12 September, 2022
WP.No.14035 of 2012
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 12.09.2022
CORAM
THE HONOURABLE MR. JUSTICE S.S.SUNDAR
WP.No.14035 of 2012
and M.P.No.2 of 2012
T.S.Thiyagaraja gurukkal (deceased)
2. T.Vasu @ Srinivasan
3. T.Darani Gurukkal
4. S.Rajeswari
5. K.Nalani
6. N.Malliga ...petitioners
[Petitioners 2 to 6 substituted as LRs of the deceased sole
petitioner vide order of this Court dated 26.07.2022
in WMP.No.17347 of 2022 in WP.No.14035 of 2012]
Vs.
1. The Director of Town Panchayat,
Kuralagam,
Chennai 600 003.
2. The Assistant Director of Town Panchayat,
Kancheepuram 631 501.
3. The Executive Officer,
Thirukazhukundram Town Panchayat,
Thirukazhukundram,
Kancheepuram District 603 109.
4. Thirukazhukundram Adhi Saiva Sivachariyargal Sangam
Rep. by its Secretary,
Old No.118, New No.60,
Big Street, Thirukazhukundram,
Kancheepuram District. ...respondents
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WP.No.14035 of 2012
Prayer:- This Writ Petition is filed under Article 226 of the Constitution
of India, seeking for a Writ of Certiorari to call for the records of the
third respondent issued in Na.Ka.No.172/2012, dated 16.04.2022, quash
the same as illegal, arbitrary and biased.
For Petitioners : Mr.R.Bharath Kumar
For Respondents
for RR1 & 2 : Mr.P.Balathandayutham, Spl.G.P.
for R3 : Mr.T.N.C.Kaushik
for R4 : Mr.T.Paranthaman
ORDER
This Writ Petition is filed for issuance of a Writ of Certiorari to
quash the order of the third respondent dated 16.04.2012.
2. It is the case of the petitioners that the land and building
bearing Door No.68/12 in Big Street, Tirukazhukundram Taluk in
Kancheepuram District comprised in Old Survey No.29A, Sub-Divided
No.29/1B1A and the New Survey No.521/26 and 521/23
Tirukazhukundram Village, originally belonged to the grand father of the
deceased first petitioner by name Panchatcharam Gurukkal. After the
death of the said Panchatcharam Gurukkal, his brother Mr.Sabapathy
Gurukkal was looking after the property. Subsequently, the deceased first
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WP.No.14035 of 2012
petitioner succeeded to the said property as a legal heir. Following his
demise the petitioners 2 to 6 will succeed as legal heirs.
3. The fourth respondent is an Association and a suit was filed
by them in OS.No.14 of 2006 before the District Munsif Court, which
was dismissed. The relief prayed for in the said suit is for permanent
injunction restraining the petitioners and others from interfering with
their possession and enjoyment of the subject property herein. The fourth
respondent filed an appeal in AS.No.28 of 2011 before the Sub Court,
Chengalpet. The said appeal was allowed and the suit was decreed
holding that the fourth respondent had established their title to the suit
property by a document, which was marked as Ex.A1. However, on
further appeal by the petitioners and others before this Court in
S.A.No.535 of 2015, this Court allowed the second appeal holding that
the fourth respondent/plaintiff miserably failed to prove his title or
possession in respect of the disputed suit property.
4. The fourth respondent submitted a petition for planning
approval for renovation of the building and also for construction of a
new building and the same was granted by an order dated 16.04.2012,
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WP.No.14035 of 2012
which order is impugned in this Writ Petition. Though the fourth
respondent obtained planning permission, this Court on the basis of the
judgment in S.A.No.535 of 2015, has no other option but to conclude
that the fourth respondent is not in possession of the property and he has
no title to the property.
5. The learned counsel appearing for the fourth respondent
submitted that the suit filed by the fourth respondent was dismissed only
on the ground that the suit for bare injunction is not maintainable without
the prayer for declaration of title. The fourth respondent further
submitted that this Court has reversed the judgment of the lower
appellate Court as the lower appellate Court has decided the question of
title in a suit for bare injunction. It is contended that the question of title
was not considered by this Court and therefore, this Court cannot
presume that the Writ Petitioners are in possession and enjoyment of the
subject property.
6. The lis between the petitioners and the fourth respondent in
respect of the property is admitted. From a reading of the judgment in
S.A.No.535 of 2015, it can be seen that the fourth respondent claimed
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WP.No.14035 of 2012
title to the property on the basis of the document/Ex.A1, dated
29.04.1899. This Court observed that the fourth respondent has neither
proved that Ex.A1 refers to the suit property, nor proved proper title of
the predecessors-in-interest to execute Ex.A1. The question of possession
was also decided by stating that the fourth respondent/plaintiff has not
produced any independent document to prove their possession. The
alternative plea of adverse possession has been discussed and it is held
that the fourth respondent has not prescribed title by adverse possession.
This Court also observed that since the plaintiff has not filed the suit for
declaration of title, the suit filed for permanent injunction is not
maintainable.
7. The judgment of this Court in S.A.No.535 of 2015 shows
that this Court has categorically held that the fourth respondent/plaintiff
has no title or possession over the property. In the said circumstances, the
Writ Petitioners challenging the planning permission obtained by the
fourth respondent has merits. Hence, the fourth respondent cannot be
permitted to put up construction on the basis of the impugned
proceedings.
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WP.No.14035 of 2012
8. An argument was advanced by the learned counsel for the
fourth respondent that as the planning permission was obtained for a
period of three years only, the prayer in this Writ Petition has become
infructuous, because the time in which the fourth respondent is supposed
to put up construction, was not extended. This argument is not appealing
to this Court having regard to the fact that the fourth respondent failed to
establish his title or lawful possession against the petitioners in a suit
filed for bare injunction. The cause of action for filing the suit was that
the Writ Petitioners have no title to the property to interfere with the
fourth respondent's right to put up construction. The said suit was
dismissed and this Court has ultimately affirmed the judgment of the
Trial Court dismissing the suit specifically holding that the fourth
respondent has neither title nor proved the possession.
9. In the above circumstances, the planning permission granted
in favour of the fourth respondent cannot be sustained. The impugned
order is quashed. However, depending upon the outcome of the appeal
before the Hon'ble Supreme Court in the Special Leave Petition stated to
have been filed by the fourth respondent against the judgment of this
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WP.No.14035 of 2012
Court in S.A.No.535 of 2015, it is open for the fourth respondent to
renew their application in the manner known to law.
10. Accordingly, the Writ Petition stands disposed of. No
costs. Consequently, connected miscellaneous petition is closed.
12.09.2022
Index : Yes/No
pvs
To
1. The Director of Town Panchayat,
Kuralagam,
Chennai 600 003.
2. The Assistant Director of Town Panchayat,
Kancheepuram 631 501.
3. The Executive Officer,
Thirukazhukundram Town Panchayat,
Thirukazhukundram,
Kancheepuram District 603 109.
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WP.No.14035 of 2012
S.S.SUNDAR.J.,
pvs
WP.No.14035 of 2012
12.09.2022
https://www.mhc.tn.gov.in/judis
