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High Court of Judicature at Madras
S. MANIKUMAR
G. Pandi
Versus
The Commissioner, Hosur Municipality & Others
W.P.No.35970 of 2003 & WPMP No.43685 of 2003
Decided on : 16-07-2012
Writ petition filed seeking for a mandamus, directing the respondents 1 and 2 to remove the encroachments made in Plot No.290A, Avvai Nagar, (New ASTC HUDCO), Hosur635 109, Dharmapuri District by the 3rd respondent or any other person and retain the above said plot as park as per the site plan of Tamilnadu Housing Board, Hosur, Dharmapuri District approved by the Director of Town and Country Planning. The court held that the petitioner has not made out a case of infringement of his legal right to use the place earmarked for park. In the light of the above, this Court is inclined to issue a mandamus to remove the encroachment in accordance with law.
Fact of the Case:
The petitioner has been allotted Low Income Group house plot bearing No.261 in New A.S.T.C. Hudco scheme, vide proceedings No.R5/11801/90 dated Nil.10.1990. On receipt of the entire cost, sale deed has been executed on 02.02.2001 by the 2nd respondent. The 3rd respondent has also been allotted a plot under the same scheme. It is the contention of the petitioner that as per the plan sanctioned by the Director of Town and Country Planning, Chennai, Plot No.290-A (S.No.326/1) has been earmarked for a park. According to the petitioner, the above said plot is situated opposite to the petitioner's plot bearing No.261 and in between his plot and the place earmarked for the park, there is a 9 meters road. It is the further contention of the petitioner that after the development of the area and construction of the houses, i.e., on 13.06.1996 onwards, all the streets, park and public amenities areas have been vested with Hosur Municipality, Hosur, Dharmapuri District, the 1st respondent and that it is the duty of the 1st respondent to maintain the park and other amenities without any encroachment. The learned counsel for the Housing Board, has admitted that the entire lands developed under the scheme, have been vested with the municipality and therefore, it is the duty of the municipality to maintain the streets, parks, roads and such other public utilities, as per the plan approved by the Director of Town and Country Planning, Chennai and he shall not allow any encroachments on the lands, vested with the municipality. Per contra, it is the case of the 3rd respondent that though, plot No.290-A in Survey No.326/1, was earmarked for a park, no such park was created either, by the public or by Hosur Municipality. According to him, there was a small temple (Thatched Shed) by name 'Puttru Mariamman' put up by the public, even prior to earmarking of the disputed place, by the Board, for park and that the temple has been subsequently developed by the public. A small construction measuring 200 sq.ft (4x4.6 meters) was put up for public worship and that the construction was over in the year 1994, and since then, people are worshipping the deity.
Finding of the Court:
The court held that the petitioner has not made out a case of infringement of his legal right to use the place earmarked for park. In the light of the above, this Court is inclined to issue a mandamus to remove the encroachment in accordance with law.
Issues: Whether the petitioner has made out a case of infringement of his legal right to use the place earmarked for park.
Ratio Decidendi: The court held that the petitioner has not made out a case of infringement of his legal right to use the place earmarked for park. In the light of the above, this Court is inclined to issue a mandamus to remove the encroachment in accordance with law.
Final Decision: The writ petition is allowed. No costs. Consequently, the connected Miscellaneous Petition is closed.
1. Temple, constructed in a place earmarked for a park under a Scheme, is being used as a shield, against the law of encroachment.
2. Petitioner has sought for a mandamus, directing the respondents 1 and 2 to remove the encroachments made in Plot No.290A, Avvai Nagar, (New ASTC HUDCO), Hosur635 109, Dharmapuri District by the 3rd respondent or any other person and retain the above said plot as park as per the site plan of Tamilnadu Housing Board, Hosur Housing Unit approved by the Director of Town and Country Planning.
3. The case of the petitioner is that the Housing Board acquired lands in large scales for execution of various housing schemes in and around Hosur. One such scheme was called as 'New ASTC Hudco' Scheme, named as "Avvai Nagar". Plots were developed by the Tamilnadu Housing Board, Hosur, Dharmapuri District. Upon consideration of applications for allotment of houses, either under the outright purchase scheme or Hire Purchase Scheme, plots were allotted.
4. The petitioner has preferred an application on 06.11.1987 for allotment of L.I.G. House and a plot bearing No.261 in New A.S.T.C. Hudco scheme, was allotted to the petitioner, vide proceedings No.R5/11801/90 dated Nil.10.1990. On payment of the necessary cost, the Executive Engineer, Tamilnadu Housing Board, Hosur, Dharmapuri District, the 2nd respondent executed a sale deed on 02.02.2001 in favour of the writ petitioner. As per the plan sanctioned by the Director of Town and Country Planning, Chennai, Plot No.290-A (S.No.326/1) was earmarked for a park. The above plot is situated opposite to the petitioner's plot bearing No.261.
5. It is the further case of the petitioner that in between the petitioner's plot and the said park, there is a 9 meters road. According to the petitioner, the park is maintained by the Housing Board. The petitioner has further contended that after the construction of the houses in the developed area, on 13.06.1986, the 2nd respondent, Housing Board has handed over the maintenance of the area to the Commissioner, Hosur Municipality, Dharmapuri District. Since then, all the streets, roads, park and public amenities, have been vested with the Commissioner, Hosur Municipality, Dharmapuri District.
6. The petitioner has further contended that Mr.R.Subramanian, resident of Plot No.L288, New A.S.T.C. Hudco, Avvai Nagar, Hosur, Dharmapuri District, has encroached upon Plot No.290-A, without any authority. According to the petitioner, the said plot has been earmarked only for a park. It is also his further contention that the said R.Subramanian has put up a temple and in the name of a temple, the 3rd respondent is indulging in all kinds of nuisance, like putting up the loud speakers, conducting ceremonies and rituals, causing hindrance to the petitioner and others.
7. According to him, usage of loudspeakers causes sound pollution, affecting the studies of the children. Therefore, the residents have given a complaint to the Commissioner, Hosur Municipality, Dharmapuri District, the 1st respondent, for removal of the encroachment. As there was no action, one Sundaram, a resident of that area was constrained to prefer a writ petition in W.P.No.1632 of 2002 before this Court and by order dated 29.01.2002, a direction was given to consider the said representation. The petitioner has further contended that the said order has not been implemented, in letter and spirit.
8. The petitioner has further contended that his house is situated opposite to the unauthorised construction of the 3rd respondent in Plot No.290-A and that it affects the right of the petitioner to enjoy the portion of the land, earmarked for a park. It is also his contention that the unauthorised construction cannot be allowed to be continued. Being aggrieved by the unauthorised construction in an area earmarked for a park and contending inter alia that the right of the petitioner to use the place is taken away, by an encroacher, the petitioner is stated to have made
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