IN THE HIGH COURT OF JUDICATURE AT MADRAS

Reserved On	15.07.2022
Pronounced On	030822

CORAM

 

THE HON’BLE MR.JUSTICE C.SARAVANAN

1. No.11970 of 2020and

W.M.P.Nos.14702 of 2020 and 1222 of 2022

S.Muralidharan … Petitioner

 

Vs.

1. The Commissioner,

Greater Chennai Corporation,

Ripon Building,

E.V.R. Road, Chennai – 600 003.

2. The Assistant Commissioner,

Greater Chennai Corporation,

Zone – 10,

No.117, N.S.K. Salai,

Kodambakkam, Chennai – 600 024.

3. The Executive Engineer – I,

Greater Chennai Corporation,

Zone – 10,

No.117, N.S.K. Salai,

Kodambakkam, Chennai – 600 024.

4. The Joint Commissioner,

Deputy Commissioner/The Executive Officer (In-Charge),

Arulmighu Vadapalani Andavar Thirukoil,

Vadapalani, Chennai – 600 026.                  … Respondents

Prayer: Writ Petition filed under Article 226 of Constitution of India, for issuance of a Writ of Mandamus to forbear the respondents from converting North Mada Street (40 Feet Road) into a parking space (18 Feet) at Vadapalani, Chennai – 600 026 by considering the petitioner’s representation dated 10.03.2020.

For Petitioner           : Mr.R.Jayaprakash

For Respondents       :

For R1 to R3 : Mrs.karthikaa Ashok   Standing Counsel

For R4                      : Mr.M.Karthikeyan

ORDER

The Petitioner has filed this writ petition for a Mandamus to forbear the respondents from converting North Mada Street (40 Feet Road) into a parking space (18 Feet) at Vadapalani, Chennai – 600 026 by considering the petitioner’s representation dated 10.03.2020.

2. The case of the petitioner is that the proposal for parking of vehicles on the North Mada Street, Vadapalani near Arulmighu Vadapalani Andavar Temple is contrary to the order dated 15.03.2016 of this Court in W.P.No.16530 of 2015 which reads as under:

“2. We are informed that all the concerned are taking necessary steps now to redeem the position, in view of the report. The relevant material has been placed on record in this behalf. Nothing more is even required by the petitioner. We would, however while closing this petition, monitor the aspect for some time by directing the respondents to file progress report and once we are satisfied that there is sufficient progress, this could be necessary.

3. The fee of the Commissioner was tentatively fixed with a direction to share the same between the petitioner and the Executive Officer of the Temple. Considering the work involved and the report prepared, we direct a similar amount to be paid once more – Rs.20,000/- each within 15 days, apart from the out of pocket expenses, which will also be shared equally.
4. The petition is closed with the aforesaid terms, leaving the parties to bear their own costs.
5. The progress report be filed at least a week before the next date of hearing with advance copies to the learned counsel for the parties and the Court Commissioner may give suggestions in that context.”
6. Earlier an order dated 11.06.2015 was passed, wherein a report of a committee consisting of the Additional Commissioner of Police (Traffic), Office of the Commissioner of Police, Chennai and the Deputy Commissioner of Police

(Traffic), Chennai was called for.

4. Pursuant to the aforesaid order dated 11.06.2015, a detailed report was also filed by the officers before the Court. Thereafter, the Hon’ble Division Bench of this Court by its order dated 02.11.2015 in W.P.No.16530 of 2015 appointed an Advocate Commissioner who was called upon to give a report. The order passed by the Hon’ble Division Bench of this Court dated 02.11.2015 reads as under:

“The affidavit filed by the sixth respondent leaves no manner of doubt that there was a chaotic situation prevalent. The question is whether when the traffic arrangement coming into place as stated before us by the learned Government Pleader and number of marriages being restricted to 15 per slot that there being 4 slots in a day and 10 persons permitted per family, the situation will manageable or not.

2. The learned counsel for the petitioner suggests that there should be an independent verification of the ground reality. We agree with the submission and consider it appropriate to appoint a local Commissioner to visit the area with a photographer to take photographs/videos and the police to render all assistance to him. It will be for the local Commissioner to visit the site atleast on two to three occasions on an auspicious day for marriage, so that we get an idea of the situation prevalent. The issue of parking can also be looked into by the local Commissioner from the perspective of it being stated now that the car parks are available as per the learned Government Pleader.
3. A.J.Jawad, Advocate, residing at No.5/1,

Jagajeevan Ram Avenue, East Coast Road,

Injambakkam, Chennai is appointed as the local Commissioner and the fee of the local Commissioner is tentatively fixed at Rs.40,000/- (Rupees Forty Thousand Only) for all the visits apart from the pocket expenses including of the photographs/videos. The fee will be shared between the petitioner and the third respondent.

4. List on 19.01.2016.”

5. The Hon’ble Division Bench of this court in its final order dated

15.03.2016 in W.P.No.16530 of 2015 has reproduced the Advocate

Commissioner’s report which reads as under:

“Summary of the observations:

My observations, as discussed above, reveal that the problem of traffic congestion in and around the Temple emanates from different sources, which I am attempting to enumerate as follows:

1. The very topography of the locality, which consists of narrow streets, unplanned, arbitrary and irregular development and construction of buildings encroaching on the already narrow streets.
2. Insufficient parking space further constructed by the narrow approach and common entry and exit.
3. Indiscriminate and unregulated parking of vehicles –

private and commercial – by residents themselves and outsiders.

1. Poor civic maintenance and garbage disposal and indiscriminate dumping of garbage at crucial intersections, which obstructs free flow of traffic.
2. Unregulated proliferation of marriage halls, restaurants, commercial establishments in the area, which are exploiting the proximity to the Temple for the commerce that it brings in.
3. Ingress of heavy commercial vehicles and water tankers to deliver supplies and water to the commercial establishments and also the residences.

While almost all the factors enumerated above are common to many localities in Chennai, what compounds the situation in Vadapalani is the location of the Temple. But the fact is that, while the Temple has been in existence for the past more than 125 years, the erratic growth of buildings and commercial establishments in the vicinity is a later development. A sense of deja vu is unavoidable when visiting this locality, as it is a microcosmic manifestation of the general apathy, indifference and lack of civic sense that prevails in the country, both in the citizens and in the administration.”

2. We are informed that all the concerned are taking necessary steps now to redeem the position, in view of the report. The relevant material has been placed on record in this behalf. Nothing more is even required by the

petitioner. We would, however while closing this petition, monitor the aspect for some time by directing the respondents to file progress report and once we are satisfied that there is sufficient progress, this could not be necessary.

3. The fee of the Commissioner was tentatively fixed with a direction to share the same between the petitioner and the Executive Officer of the Temple. Considering the work involved and the report prepared, we direct a similar amount to be paid once more – Rs.20,000/- each within 15 days, apart from the out of pocket expenses, which will also be shared equally.
4. The petition is closed with the aforesaid terms, leaving the parties to bear their own costs.
5. The progress report be filed at least a week before the next date of hearing with advance copies to the learned counsel for the parties and the Court Commissioner may give suggestions in that context.
6. List for compliance on 15th July, 2016.”
7. It is the specific case of the petitioner that the proposal of the respondent corporation to allow 18 feet for the parking of vehicles of devotees/pilgrims visiting the Vadapalani Temple by reducing the 48′-1½ feet road is contrary to the decision of the Hon’ble Division Bench of this Court in W.P.No.16530 of 2015.
8. Opposing the prayer, the learned counsel for the Chennai Corporation submits that the Greater Chennai Corporation has taken note of the aforesaid order and a resolution was passed by the council on 08.09.2020. However, the resolution has not been implemented in view of the pendency of the present writ petition.
9. Relevant portion from the resolution of the Council dated 08.09.2020 vide Resolution No.603/2020 reads as under:

Mfnt. ,j;Jld; ,izf;fg;glL;s;s tiuglj;jpy;

Fwpg;gplL;s;s 231′-9” ePsk; kwW;k; 18′-9” mfyk; cs;s

,e;j rhiy mikf;fg;glhj kz;rhiy gFjpapid

(4344.23 rJuo) ,lji; j nfhtpYf;F tH’;Fk; gl;rj;jpy; mth;fs; mjid ngtp’; gpshf; (Paving Block) fw;fs; bfhz;L. Jiu mikj;J. thfd’;fSf;F epHw;Fil mikj;J. jpUf;nfhapYf;F tUk; ,U rf;fu thfd’;fis epWj;jp bfhs;tjhf bgUefu brdi;d khefuhl;rp Mizahsh; mth;fis nehpYk.; fojk; KyKk; typa[Wj;jpa[s;sdh;/ ,jdhy; jw;bghGJ kw;w rhiyfspy; epWj;jg;gLk/; ,f;nfhtpYf;F tUk; gf;ju;fspd; thfd’;fspdhy; nghf;Ftuj;J beuprYk; Fiwa[k; vdW; Twpa[s;sdh;/

Mfnt. jw;fhypfkhf mikf;fg;gLk; ,e;j thfd epWj;Jk; ,lji; j. nfhtpy; epu;thfj;jpw;F thfdk; epWj;Jtjw;F chpik khww;k; vJtk[; ,dw;p. Vt;tpj fll;zkpdw;p tH’;ftk[;. nkYk.; gpdt;Uk; fhyj;jpy; ,r;rhiy tphpthf;fk; bra;a ntzo;apUg;gpd.; ,e;j

,lji; j bgUefu brdi;d khefuhl;rpapd; kzl;yk;-10 epu;thfj;jplk; cldoahf xg;gilf;fntz;Lk; vd;w epge;jidapd; mogg;ilapy; ,jw;F jilapdi; k rhdw;pjH; tH’;f rpwg;g[ mjpjhup epiyf;FG(gzpfs;) kwW; k; kdw;k; mtu;fspd; mDkjp nfhupa MizauJ

04.09.2020 ehspll; Fwpg;g[ gof;fg;gll;J/

“tlgHep nfhapy; tlf;F khl tPjpapy; cs;s 4344.23 rJuo ,lj;jpid thfd’;fs; epWj;Jk; ,lkhf gadg;Lj;j Fwpgg;py; cs;s epge;jida[ld; jilapdi; k rhdw;pjH; tH’;f rpwg;g[ mjpfhup epiyf;FG(gzpfs;) kwW; k; kdw;k; mtu;fshy; mDkjp mspf;fg;gll;J”/

9. The learned counsel for the Chennai Corporation submits that the

Assistant Commissioner / Executive Officer, Arulmighu Vadapalani Andavar

Thirukoil had earlier addressed a Letter dated 09.07.2020 and requested the

Commissioner, Greater Chennai Corporation to allot the vacant land measuring

4344.23 sq.ft. at North Mada Street, Vadapalani near Arulmighu Vadapalani Andavar Thirukoil Pond for parking of vehicles for the benefits of the devotees/pilgrims coming to the temple.

10. It is further submitted that there cannot be any interference as powers are vested with the Council under Section 223(5) of the Chennai City Municipal Corporation Act, 1919 to lease road sides and street margins. Attention was drawn to Sub Section 5 of Section 223 of the Chennai City Municipal

Corporation Act, 1919  which reads as under:

 

“(5) The council shall have power to lease road sides and street margins vested in the corporation for occupation on such terms and conditions and for such period as it may fix:

Provided that no such lease for any term exceeding three years shall be valid unless the sanction of the State Government therefor shall have been first obtained:

Provided further that if the State Government consider that any occupation of a road side or street margin under a lease granted by the council under this section is likely to be injurious to health or cause public inconvenience or otherwise materially interfere with the use of the road side or street margin as such, the State Government may direct the council to cancel or modify the lease and the council shall thereupon cancel or modify the lease accordingly.”

11. I have considered the arguments advanced by the learned counsel for the petitioner and the learned counsels for the respondents. I have also perused the provisions of the Chennai City Municipal Corporation Act, 1919,

particularly Section 223(5) of the Act.

12. The Council under Chennai City Municipal Corporation Act, 1919 is empowered to pass a resolution to lease road sides and street margins on such terms and on such conditions and for such period as it may fix.
13. The resolution passed by the Council on 08.09.2020 vide Resolution No.603/20 (content of which has been extracted above) clearly indicates that the resolution has been passed in the light of the request received from the fourth respondent temple to give permission to allow parking by laying paver block on the mud path. There is no decision to transfer the aforesaid area permanently in favour of the fourth respondent temple.
14. As and when the space is required for the purpose of widening, the aforesaid space will be retrieved back by the Respondent Corporation. The Corporation has merely decided to license the space to the temple to manage the devotees/pilgrims and their convenience.
15. It is therefore not open for the petitioners to interfere with the decision of the respondent Corporation while exercising its power under the provisions of the Chennai City Municipal Corporation Act, 1919.
16. The present writ petition has been filed by the petitioner to preserve the privilege enjoyed so far by illegally parking their vehicles opposite to Arulmighu Vadapalani Andavar Temple on the North Mada

Street.

17. The road margin appears to have been occupied by these residents by forcing the devotees/pilgrims visiting the temple to park their vehicles in different streets around the temple leading to traffic jam and snarls.
18. The Hon’ble Division Bench of this Court has considered all this and therefore, had called for a report of a committee consisting of the Additional Commissioner of Police (Traffic), Office of the Commissioner of Police and the Deputy Commissioner Police (Traffic).
19. The Hon’ble Division Bench of this Court in W.P.No.16530 of 2015 has also recorded in its order dated 02.11.2015 that issue of parking can be looked into by the Local Commissioner in view of the availability of car parking.
20. As per the submissions of the learned Standing Counsel for the first respondent to third respondent, the traffic around the temple has been regularized by removing the vehicles which were illegally parked on the public space.
21. In my view, the petitioner, as a resident of North Mada Street cannot interfere with the rights of the respondent corporation under Section 223(5) of the Chennai City Municipal Corporation Act, 1919. In fact, the petitioner ought to have been aware of the fact before investing in a property near the temple, the area was going to be crowded and would pose some amount of inconvenience.
22. There are no merits in the present writ petition. Therefore, it is liable to be dismissed and is accordingly dismissed. No cost. Consequently, connected miscellaneous petitions are closed.

 

                                                                                         03.08.2022

Index     : Yes/No

Internet  : Yes/No

Speaking/Non-speaking Order’ rgm

To

1. The Commissioner,

Greater Chennai Corporation,

Ripon Building,

E.V.R. Road, Chennai – 600 003.

2. The Assistant Commissioner,

Greater Chennai Corporation,

Zone – 10,

No.117, N.S.K. Salai,

Kodambakkam, Chennai – 600 024.

3. The Executive Engineer – I,

Greater Chennai Corporation,

Zone – 10,

No.117, N.S.K. Salai,

Kodambakkam, Chennai – 600 024.

4. The Joint Commissioner,

Deputy Commissioner/The Executive Officer (In-Charge),      Arulmighu Vadapalani Andavar Thirukoil,      Vadapalani, Chennai – 600 026.

C.SARAVANAN, J. rgm

W.P.No.11970 of 2020 and W.M.P.Nos.14702 of 2020 and 1222 of 2022

03.08.2022