Madras High Court
G.Elc.D.Raj vs The Commissioner on 12 July, 2023
WP(MD)No.16766 of 2023
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 12.07.2023
CORAM:
THE HONOURABLE MR.JUSTICE B.PUGALENDHI
WP(MD).No.16766 of 2023
G.ELC.D.Raj ... Petitioner
Vs
1.The Commissioner,
Padmanabhapuram Municipality,
Thuckalay,
Kanyakumari District.
2.Biblyana Elsi Moni ... Respondents
Prayer: Writ Petition filed under Article 226 of the Constitution of
India, praying this Court to issue a Writ of Mandamus, directing the
first respondent to reject the renewal of plan approval in
R.S.No.C9/10/5 Kalkulam Village, Kalkulam Taluk, Kanyakumari
District by considering the petitioner's representation dated 24.05.2023.
For Petitioner : Mr.G.Ramanathan
For R1 : Mr.P.Athimoola Pandian
1/7
https://www.mhc.tn.gov.in/judis
WP(MD)No.16766 of 2023
ORDER
The petitioner claiming to be a tenant of the second
respondent to an extent of 90 cents of land in RS.No.C9/10/5,
Kalkulam Taluk, Kanyakumari District has submitted an application to
the first respondent not to renew the Building plan approval granted in
favour of the second respondent in the year 2018 for the above land.
2.The learned counsel appearing for the petitioner submits
that the above property belongs to the second respondent herein. The
petitioner is a cultivating tenant of the above lands under the second
respondent. She entered into an agreement with the second respondent
in the year 2009 by paying a sum of Rs.1,00,000/- as advance amount
and Rs.7,000/- was fixed as a monthly rent and the lease period of three
years was periodically renewed. While so, the second respondent
attempted to evict the petitioner from the property. Therefore, the
petitioner has filed a suit in O.S.No.87 of 2019 before the Principal
District Munsif Court, Padmanatbhapuram for the relief of permanent
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WP(MD)No.16766 of 2023
injunction and has also obtained a decree in her favour. The second
respondent has also filed a suit in O.S.No.166 of 2019 before the Sub
Court, Padmanabapuram against this petitioner for the relief of
recovery of possession and the same was decreed in favour of the
second respondent on 01.09.2021. As against the Judgment and decree
passed in O.S.No.166 of 2019, the petitioner has preferred an appeal in
A.S.No.40 of 2021 before the Principal District Court, Kanyakumari at
Nagerkoil and the same is still pending. At this juncture, the second
respondent has attempted to get a Building Plan approval from the first
respondent / Padmanabhapuram Municipality and therefore, the
petitioner has submitted a representation to the first respondent not to
renew the application of the second respondent. Since the petitioner's
representation was not considered, she is before this Court, for a
Mandamus, directing the first respondent to reject the Building plan
approval in R.S.No.C9/10/5 Kalkulam Village, Kalkulam Taluk,
Kanyakumari District by considering her representation dated
24.05.2023.
https://www.mhc.tn.gov.in/judis
WP(MD)No.16766 of 2023
3.Mr.Athimoolapandian, learned counsel, who takes notice
for the first respondent submits that the suit filed by the petitioner in
O.S.No.87 of 2019 was decreed in favour of the petitioner that the
petitioner shall not be evicted without following due process of law.
Thereafter, the second respondent/landlady has filed a suit in O.S.No.
166 of 2019 as against the petitioner for recovery of possession and the
same was decreed on 01.09.2021, thereby, the suit property is now vest
with the second respondent. Though the petitioner has preferred an
appeal challenging the Judgment and decree passed in O.S.No.166 of
2019, she has not obtained any interim order. In the meantime, the
second respondent has submitted an application for renewal of building
plan approval. Hence, the petitioner has submitted a representation to
the first respondent to reject the renewal plan approval.
4.Heard the learned counsel on either side and perused the
materials placed on record.
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WP(MD)No.16766 of 2023
5.The petitioner claims that she is a cultivating tenant under
the second respondent. However, she was not recorded as a cultivating
tenant as per the Tamil Nadu Cultivating Tenant Protection Act. In the
suit filed by the second respondent in O.S.No.166 of 2019 for recovery
of possession, the learned Sub Judge, Padmanabhapuram has recorded
that the petitioner herein is not a cultivating tenant and has also decreed
the suit. Challenging the judgment and decree passed in O.S.No.166 of
2019, the petitioner has preferred an appeal in A.S.No.40 of 2021 and
the same is still pending. In view of the order passed by the Sub Court,
Padmanabhapuram, the petitioner is not having any right to question
the building plan approval, if any granted in favour of the second
respondent as she is the absolute owner of the subject property.
6. Therefore, this Court is not inclined to entertain this writ
petition. Accordingly, this writ petition is dismissed with a liberty to
the petitioner to work out her remedy in the Appeal suit, which was
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WP(MD)No.16766 of 2023
filed by her in A.S.No.40 of 2021 before the Principal District Court,
Kanyakumari District at Nagercoil. No costs.
12.07.2023
NCC : Yes / No.
Index : Yes / No.
vrn
To
The Commissioner,
Padmanabhapuram Municipality,
Thuckalay,
Kanyakumari District.
https://www.mhc.tn.gov.in/judis
WP(MD)No.16766 of 2023
B.PUGALENDHI, J.
vrn
Order made in
WP(MD).No.16766 of 2023
12.07.2023
https://www.mhc.tn.gov.in/judis
