R. Narashimman vs The Commissioner, The Corporation of Chennai

Sanjay Kishan Kaul, J.—The petition styled as a Public Interest Litigation (PIL), has been filed seeking stoppage of alleged unauthorised construction stated to have been made by the fourth respondent in spite of Stop Work Notice dated 30.10.2014. The petition alleges that though the land belongs to the fourth respondent, unauthorised construction is being made by partly encroaching on the land belonging to one Peeliamman Temple. A well used by general public and located on the Temple land, is also alleged to have been closed with the walls of the well being demolished by the fourth respondent.

The aforesaid is stated to have resulted in a complaint being lodged with the police station by the petitioner and other residents with the help of temple authorities, and the Hindu Religious and Charitable Endowments (HR & CE) Department is stated to have erected a board stating that the land and well are properties of the said Department. Despite the Stop Work Notice, the Corporation/first respondent is stated not to be taking steps to prevent the ongoing construction. A site inspection is stated to have been carried out on 30.10.2014, and having found that the construction was illegal, the Stop Work Notice was issued on the same date.

The aforesaid is the sum and substance of the allegation in the petition.

The first respondent/the Commissioner of Corporation has filed an affidavit. It has been categorically averred that the construction by the fourth respondent is on his own land and not on a part of the land belonging to Peeliamman Temple. The construction is stated to be as per the approved plan dated 17.7.2014.

On having received complaints from the public, a notice is stated to have been issued to the fourth respondent under Section 56 of the Tamil Nadu Town and Country Planning Act, 1971, calling for the approved plan and not a Stop Work Notice. The inspection was carried out at site by the Assistant Executive Engineer and Assistant Engineer of Enforcement Cell on 10.11.2014, and after verifying the records and measurements with the approved plan, no deviation was found from the sanctioned plan. It is alleged that apparently, there is a personal dispute between the petitioner and the fourth respondent.

The fourth respondent being the contesting party, has also filed a separate affidavit affirming that the land was owned by him and his wife in pursuance of a duly registered sale deed and the patta stands in his name. He has categorically denied any encroachment on the adjacent temple land or demolition of the wall of the well or it''s closure. The planning permission was applied for on 19.5.2014, and was granted on 17.7.2014; but, suddenly, on 30.10.2014, a notice was issued calling upon the fourth respondent to submit the approved plan in original and if no approved plan was available or the construction was in deviation of the plan, to stop work immediately and confirm in writing within three days from the date of receipt of the notice. Thereafter, the story tallies with the stand of the first respondent-Corporation.

A background is given to the lis by stating that on 18.3.2014, before commencing construction, the owners had dug three wells in the property for their use with motor pump in one of the bore wells to extract water for the purpose of construction, while the remaining two bore wells were kept for future use. These two remaining bore wells are alleged to have been closed by the petitioner and another man acting in collusion with him, by putting stones and broken bottle pieces, for which, the fourth respondent made a police complaint in April, 2014. It is alleged that on 12.4.2014, once again, the petitioner and his men dug a pit with a depth of about 4 feet in the pathway connecting the property and demanded Rs. 15 lakhs to be paid to them. The ostensible plea raised for the demand was that the land belongs to the temple. On enquiry from the vendor, the fourth respondent found out that same modus operandi had been used in the year 2004 and money had been paid to these people to get rid of the problems. The fourth respondent claims that he refused to pay any amount.

It is stated that the adjacent properties and the pathway leading to the property, belong to the temple, which fact has been taken advantage of and a complaint was made to the local Councillor, who took up the same, and a resolution was passed in July, 2014, to clear the place and close down the well. In May, 2014, the petitioner and other persons are stated to have threatened the workers with dire consequences, resulting in a detailed complaint on 14.5.2014, by the fourth respondent with the local police station. Since no action was taken, the Court was approached, where directions were issued to register a FIR in accordance with law; but, still, no FIR was registered and the threat continued, resulting in a detailed complaint by the fourth respondent on 4.8.2014, to the Assistant Commissioner. Another complaint was also made on 28.10.2014. In a nutshell, the complaint is that a blackmail is taking place and finally, a detailed representation was submitted to the CM''s Cell on 10.11.2014.

The petitioner has circulated today translated copies of the Minutes of the Additional Commissioner (Enquiry), HR & CE Department, to the effect that the well belonging to the temple, was proposed to be converted into a common pathway by the fourth respondent, for which, W.P.No. 11470 of 2014 had been filed and interim orders granted on 22.4.2014. A request was made to take up this matter on appeal so that the well could be restored to the temple. A copy of the order passed by the learned Single Judge on 22.4.2014, has also been filed, whereby the fourth respondent and his wife as petitioners therein had been permitted to use the passage in question without putting up any construction on the passage lying with the HR & CE Department.

Learned Counsel for petitioner thus, contends that the issue is one of use of the temple land for a passage and actually no permission ought to have been granted to the fourth respondent. He, however, concedes that the cause, on which, he approached the Court, was of construction being carried on despite Stop Work Notice.

The aforesaid controversy, the filing of the writ petition and our order dated 25.11.2014, could have been avoided, if there had been no inaction on the part of the respondent Departments in sending reply to the notices of the petitioner pointing out that the construction was within the parameters. This they failed to do, as has been the cause for most PILs on account of failure of Government Departments to respond to the complaints. This is the very reason that this Court has repeatedly emphasised the necessity of responding to the complaints within a time bound schedule to avoid unnecessary litigation, but so far, to no avail.

Insofar as the controversy in question is concerned, it is obvious that the construction being made by the fourth respondent is in accordance with the sanctioned plan and as per norms. Even on complaint, when inspection has been carried out, nothing irregular has been found. The case, which is now sought to be made out i.e., the passage owned by the temple ought not to be utilised, is completely different from the one propounded in the present petition of failure to stop work despite Stop Work Notice. Actually, there was no Stop Work Notice, but a notice for the fourth respondent to produce the sanctioned plan and if no sanctioned plan existed, then only to stop work. The fourth respondent thus, cannot be faulted.

The controversy qua the pathway, in any case, forms subject matter of a petition filed by the fourth respondent and would be decided in those proceedings.

The counter affidavit of the fourth respondent shows the past conflict between the petitioner and persons of same thinking on the one side and the fourth respondent on the other side. The petitioner did not mention any of these facts. The conduct of the petitioner, thus, seems to give credence to the allegations of the fourth respondent that this is a private lis, with an endeavour to blackmail the fourth respondent. If the allegation was one of use of land of the temple for a passage and that fact was known in view of the writ proceedings initiated by the fourth respondent and his wife, those aspects ought to have been mentioned as averments in the petition. The PIL has been filed really to prejudice the fourth respondent despite the fourth respondent carrying on construction in accordance with the sanctioned plan, an information, which the petitioner could have easily obtained from the Corporation, having made the complaint.

We are, thus, of the view that the present writ petition is an abuse of jurisdiction of PIL and accordingly, dismiss the same with cost quantified at Rs. 10,000/- (Rupees ten thousand only) to be paid by the petitioner to the fourth respondent within 15 days from today. Consequently, connected MP is also dismissed.