Back
2000 Supreme(Mad) 391
High Court of Judicature at Madras
THE HONOURABLE MR. JUSTICE A. RAMAN
D. Malligarjuna Rao - Appellant
Versus
Member Secretary, Chennai Metropolitan Development Authority, Chennai and Others - Respondents
W.P.No. 17321 and W.M.P. No.25147 of 1999
Decided On : 07 April 2000
The duty of the Corporation to maintain public roads and the right of access to public streets were central to the court's decision.
Headnote:
Encroachment - Property Rights - [Tamil Nadu Slum Clearance Board Act, Section 3(1), Development Control Rules] - The court discussed the encroachments on the road margin, the responsibilities of the Corporation and the Slum Clearance Board, and the right of the petitioner to have access to the road. Key legal provisions such as the right of access to public streets and the duty of the Corporation to maintain roads were highlighted and influenced the court's decision.
Fact of the Case:
The petitioner sought removal of encroachments on the road margin abutting their property, hindering access to the road. The Corporation and the Slum Clearance Board disputed responsibility for the encroachments.
Finding of the Court:
The court found that the encroachments posed a threat to public health and impeded traffic flow. It held the Corporation responsible for maintaining the roads and ordered the immediate removal of encroachments.
Issues: Dispute over responsibility for encroachments, hindrance to access and traffic flow, and public health concerns.
Ratio Decidendi: The right of access to public streets, the duty of the Corporation to maintain roads, and the threat to public health influenced the court's decision to order the removal of encroachments.
Final Decision: The Writ Petition was allowed, and a direction was issued to remove all encroachments on the road margin immediately abutting the petitioner's property. The Corporation was tasked with coordinating the removal and further processing the petitioner's application for planning permission.
The Order of the Court was as follows :
The petitioner and his family own about 18 grounds and 244 sq. ft. in R.S. No.2932/12, Block-48 Puraswalkam. The property is abutted on the eastern side by Baracah Road. There are slums in the said road which considerably reduced the width of the road from its original width of 49 feet to 12 feet. The encroachment caused considerable difficulties to the petitioner as well as the residents of the locality, not to mention the impediment caused to the free flow of traffic. A group of residents called "Madras Secretariat Co-operative Building Society" filed a writ petition in W.P. No. 12243 of 1984 for removal of the encroachments on either side of the Baracah Road. An order was passed on 16-9-1994, directing the Commissioner of Corporation, the Managing Director of the Tamil Nadu Slum Clearance Board and Chennai Metropolitan Development Authority to remove the encroachments by providing alternative accommodation for the slum dwellers. In spite of the said order, no steps were taken by the respondent. The respondents identified only a few huts as encroachments and removed only 38 huts on either side of the road and left out the remaining 12 huts undisturbed. Therefore, the Baracah Road Residents Welfare Association sent a notice dated 13-3-1998 to the Commissioner, Slum Clearance Board to remove all the huts on the eastern side of the road. But the situation remained the same and there are number of huts in front of the petitioner's property, blocking the way from Baracah Road. In fact, out of the five huts, two hut dwellers have already been provided alternative accommodation in Sathavanimuthu Nagar and yet they have not removed the encroachments. Neither the Tamil Nadu Slum Clearance Board nor the Corporation of Chennai has taken any steps to remove the encroachments and provide alternative accommodation, with the result that free access to Baracah Road and to the respective properties from the Baracah Road is very much prevented. The encroachments are on the road margin and are blocking the petitioner's property. Depite several letters, the authorities have not taken steps to remove the same. The petitioner wanted to construct residential flats in three blocks in the said property and submitted a petition for planning permission. The petitioner also provided an open space reservation in front of the proposed flats facing Baracah Road and wanted to bequeath the property for public purpose. The petitioner has clearly stated in his letter that the OSF area (open space reservation area) could not be fenced as access to the petitioner's property has to necessarily only through the OSR area till the encroachments are removed. The City Engineer has addressed a communication on 27-9-1999 that he inspected and found that the entire frontage of the petitioner's property except 16 feet is under occupation by slum dwellers and there is no other access to the proposed building site except through the open space reservation and, therefore, it is not possible to take over the OSR land and hence suggested that alternative arrangements may be made to take over the OSR area with access from the public Road. The petitioner's application for planning permission is not considered so far on the ground that OSR area is not fenced, bequeathed and handed over as required by the Corporation. Hence, the present Writ Petition.
2. The 2nd respondent has filed a counter, alleging as follows :-
It is the usual practice to insist upon the applicants to fence the OSR area which has easy access from the public road, if the location is approved by the Chennai Metropolitan Development Authority. The petitioner's property comprised in R.S. No.2932/12 is of an extent of 18.10 grounds on the eastern side. The said land was later formed as Secretariat Colony. The lake bund is called as Baracah Road. In and around the Baracah Road, there are number of hutments and the slums comes under notified slum by the Tamil Nadu Sl
