case dismissed by THE HONOURABLE JUSTICE MR.N.ANAND VENKATESH W.P.No.5571 of 2023 and WMP No.5587 of 2023 Kalakshetra Foundation Rep. by its Director Kalakshetra Road Thiruvanmiyur,Chennai 41. …Petitioner
IN THE HIGH COURT OF JUDICATURE AT MADRAS
ORDERS RESERVED ON : 07.06.2023
ORDERS PRONOUNCED ON : 12.06.2023
CORAM
THE HONOURABLE JUSTICE MR.N.ANAND VENKATESH
W.P.No.5571 of 2023
and
WMP No.5587 of 2023
Kalakshetra Foundation
Rep. by its Director
Kalakshetra Road
Thiruvanmiyur,Chennai 41. …Petitioner
.Vs.
- The Secretary to the Government
Revenue Department
Fort St.George
Secretariat, Chennai-600 009
- The Commissioner
Corporation of Chennai Ripon Building
Chennai 03
- The Commissioner
Land Administration (Admn)
Chepauk, Chennai 600 005.
- Executive Engineer
Zone 13 Zonal Division
Corporation of Chennai
Regional Deputy Commissioner
(South) 115 Dr. Muthulakshmi Salai
Adyar , Chennai 600 020. ..Respondents
Writ Petition filed under Article 226 of the Constitution of India, for issuance of a Writ of Mandamus, directing the 1st /2nd respondents to act in accordance with the recommendations of the 3rd respondent in Letter No. Rc. E3/ 22030/ 2003 dated 29.01.2010 within a prescribed period and consequently forbear and restrain the 2nd respondent/4th respondent his officers, men and agents and / or any person acting through or under them from proceeding with the survey or laying any road for vehicular traffic on the pedestrian pathway measuring 1.46 acres in Survey Nos. 173/3, 179/3 and 180/2 of Thiruvanmiyur Village Mylapore – Triplicane Taluk, Chennai District situate within the campus of the petitioner.
For Petitioner : Mr.K.Manoj Menon
for M/s.Menon Karthik Mukundan
For Respondents : Mr.A.M.Ayyadurai
Government Advocate
for R1, R3
Mrs.S.Vanitha Joice Rani
Standing Counsel
for R2, R4 ORDER
The Kalakshetra Foundation has filed this writ petition for a direction to the 1st and 2nd respondents to act in line with the recommendations of the 3rd respondent through letter dated 29.01.2010 and forbear the 2nd and 4th respondents from surveying the subject property in Survey Nos.173/3, 179/3 and 180/2 at Thiruvanmiyur Village, Chennai, measuring an extent of 1.46 acres and laying any road for vehicular traffic.
2.The case of the petitioner is that the petitioner Foundation is running several educational, art and cultural institutions and nearly 600 students are studying and many students and faculty members reside within the campus.
3.There was a pathway within the campus measuring about 2.34 acres and this pathway was earlier used as an access to the burial and cremation ground in Survey Nos.178/1 and 179/4. At the request of the petitioner Foundation, the Government of Tamil Nadu leased the pathway for a period of 25 years from the year 1967-1992. Since this pathway was used as an access to the burial and cremation ground, the funeral procession was passing through the campus. Considering the same, the Government of Tamil Nadu acquired about 3.10 acres in Survey No.219/2B to shift the burial and cremation ground. Objections were raised and show cause notice was also issued to the petitioner to show cause as to why the Government Order shifting the burial and cremation ground should not be cancelled. The petitioner gave a reply to the show cause notice stating that the alternative place was acquired with the funds provided by the petitioner. Inspite of the same, the Government of Tamil Nadu passed subsequent order retaining the original burial and cremation ground.
4.The petitioner filed WP.No.1504 of 1972, before this Court challenging the order of Government and the writ petition was dismissed by order dated 21.03.1973. Aggrieved by the same, an appeal was filed in WA.No.152 of 1973 and this writ appeal was allowed by an order dated 19.09.1975. The relevant portion in the order is extracted hereunder:
1.That the order of this Court dated 21.3.1973 and made in the exercise of the Special Original Jurisdiction of this Court in WP.No.1504 of 1973 be and is hereby set aside; .
2.That the Executive Officer, Thiruvanmiyur Town Panchayat, Thiruvanmiyur, the first respondent herein be and is hereby restrained from using S.Nos.178/1 and 179/4, Thiruvanmiyur Village, Saidapet as burial-cum-cremation ground for the residents of Thiruvanmiyur;
3.That Appellant be and hereby is directed to set apart one acre of land on the south-eastern portion of Survey No.181/1 for the formation of the new burial-cum-cremation ground and the first respondent Panchayat Board herein is directed to fence or encircle this are by a compound wall ;
4.That, for connecting the one new burial ground of an extent of one acre of land on the south-eastern portion of Survey No.181/1, with the public road on the south, the Government namely The Secretary to the Government of Tamil Nadu, Revenue Department, Fort St.George, Madras-9, the 2nd respondent will acquire expeditiously sufficient extent of land in the eastern extremity of Survey No.182 for the formation of a twenty feet broad pathway leading from south to north.
5.Pursuant to the above order passed in the writ appeal, the Government of Tamil Nadu passed GO.Ms.No.2086 dated 11.10.1976. The petitioner Foundation set apart 1.16 acres of land for formation of the new burial ground. A gift deed was executed in favour of the Panchayat in the year 1990.
6.The Government of Tamil Nadu was requested to renew the lease for the subject property for 99 years. However, the Government had renewed the lease for the pathway only for 12 years from 1992-2004 at an enhanced lease rental. The petitioner Foundation was making various representations for transferring the pathway in favour of the Foundation free of cost on the ground that the petitioner Foundation had given nearly 4.26 acres of land to the Panchayat/Government.
7.The 3rd respondent through letter dated 29.1.2010, after taking into consideration the entire background of the case, made the following recommendation to the Government.
(i) to alienate an extent of 1.46 acres of land in S.No.173/3, 179/3 and 180/2 of Tiruvanmiyur Village of Mylapore, Triplicane Taluk, Chennai District in favour of Kalakshetra Foundation for the use as Road on free of cost as a special case with usual conditions as per R.S.O.24 and with a special condition that the Government authorities must be allowed to inspect the lands as and when the necessity arises.
- ii) to waive the lease rent arrears of Rs.1.66 crores as per demand made by the Revenue authorities taking into facts as referred
8.The petitioner Foundation also met the Government Officials on various occasions after the above recommendation was made and even volunteered to provide alternate pathway for the general public in lieu of the pathway running inside the campus of the petitioner. On 15.02.2017, the petitioner also forwarded to the 1st respondent the details of the land and sketch of the proposed alternate pathway to be transferred to the Government. Thereafter, several reminders were sent to the Government to accept the alternative proposal given by the petitioner Foundation. The revenue officials also inspected the site and recorded the statement of the Director of the petitioner Foundation.
9.When the above process was going on, some of the officials belonging to the Corporation started dumping construction material during midnight on 04.01.2023 near the pathway on the eastern side of the property. When the petitioner enquired about the same, they were informed that the Corporation of Chennai had finalised the tender to lay a road on the pathway and to allow vehicular traffic. On coming to know of this development, representation was made to the Commissioner of Corporation, requesting to stop laying road for vehicular traffic. A field inspection was also conducted by officials and they also took note of the alternate pathway proposed by the petitioner. Even thereafter, steps were taken for laying the road. Left with no other alternative remedy, the present writ petition has been filed before this Court.
10.Taking into consideration the facts and circumstances of the case and the alternative proposal that was given by the petitioner Foundation for an alternate pathway and also the earlier recommendation made by the 3rd respondent in this regard, this Court directed the 1st respondent to file a status report and make the stand of the Government clear. Accordingly, a status report has been filed. The status report has been filed taking into consideration the field report submitted by the District Collector, Chennai and the report of the Principal Secretary/Commissioner, Chennai Corporation. Based on these reports, the 1st respondent has stated in the report and the request of the petitioner has not been approved by the Government.
11.Heard Mr.K.Manoj Menon, learned counsel for the petitioner, Mr.A.M.Ayyadurai, learned Government Advocate for R1, R3 and Mrs.S.Vanitha Joice Rani, learned Standing Counsel appearing on behalf of the respondents 2 and 4.
12.The short issue that arises for consideration in the present writ petition is as to whether the petitioner Foundation has the legal right to insist for transferring the land measuring for 1.46 acres which is already used as a pedestrian pathway in lieu of the alternate pathway that was suggested by the petitioner Foundation and which was agreed to be transferred to the 1st respondent.
13.There is no dispute with regard to the fact that the lease that was granted by the Government with respect to 1.46 acres, was only for a period of 12 years and the period expired as early as in the year 2004. It is true that the petitioner Foundation also offered to transfer certain lands in lieu of 1.46 acres and proposed for an alternate pathway. There is also no dispute to the fact that the subject property measuring an extent of 1.46 acres is regularly put to use by the pedestrian public for more than 60 years.
14.The field report given by the District Collector, Chennai shows that the pathway comprised in Survey Nos.173/3, 179/3 and 180/2 has a length of 88 mtrs and it connects the Thiruvanmiyur Kuppam to Thiruvanmiyur market and the Bus depot via Anna Street. The alternative road that was offered by the petitioner Foundation will cover an additional 2.2 kms to the Thiruvanmiyur market and the Bus depot.
15.It is also clear from the report of the Commissioner of Chennai Corporation that the residents belonging to Thiruvanmiyur Kuppam, where there are nearly 2500 families, will be forced to take a longer route of nearly 2.5 kms to reach Thiruvanmiyur market and the Bus terminus. Whereas the existing pathway is only 800 mtrs from the Kuppam to the Market and the Bus terminus. It is further stated that the elected Council member had requested the Chennai Corporation to lay a B.T. road for the free access of over 2500 families belonging to Thiruvanmiyur Kuppam. On considering the same, an estimate was prepared for laying a B.T. road and approval was also granted. The work order has also been issued through proceedings dated 29.11.2022. The Corporation has taken a stand that the work undertaken in the larger interest of the public and laying of the B.T. road will enable the people in Thiruvanmiyur Kuppam and particularly the school going children to have easy access. It is further stated that the laying of the road will not have any impact on the Kalakshetra Foundation.
16.In the considered view of this Court, all the concerned officials have taken into account the existing pathway and also the alternate pathway that was suggested by the petitioner Foundation. They have come to a conclusion that the existing pathway will be more beneficial to the general public and particularly the families belonging to Thiruvanmiyur Kuppam and also the school going children. Laying a pucca road will also enable the residents to utilise the road to bring emergency vehicles such as ambulance during medical emergency. The alternate pathway suggested by the petitioner Foundation will force the residents to take a longer route of 2.5 kms to access the market and the Bus terminus. In a case of this nature, the Court must always look into the interest of the public at large which will overweigh the so called hardship that will be faced by the petitioner Foundation.
17.In the light of the above discussion, this Court does not find any apparent illegality or manifest arbitrariness in the decision taken by the respondents. In any case, the petitioner Foundation cannot claim as a matter of right for conveying the property belong to the Government and to accept the alternative proposal given by the petitioner Foundation. Consequently, the relief sought for by the petitioner Foundation cannot be granted by this Court.
18.In the result, this writ petition stands dismissed. No costs. Consequently, connected miscellaneous petition is closed.
12.06.2023
KP
Internet : Yes
Index : Yes
Neutral Citation: Yes
..
To
- The Secretary to the Government
Revenue Department
Fort St.George
Secretariat, Chennai-600 009
- The Commissioner
Corporation of Chennai Ripon Building
Chennai 03
- The Commissioner
Land Administration (Admn)
Chepauk, Chennai 600 005.
- Executive Engineer
Zone 13 Zonal Division
Corporation of Chennai
Regional Deputy Commissioner
(South) 115 Dr. Muthulakshmi Salai
Adyar , Chennai 600 020.
N.ANAND VENKATESH, J.
KP
Pre-Delivery Order in
W.P.No.5571 of 2023
12.06.2023
.
