@JUDGMENTTAG-ORDER
Elipe Dharma Rao, J.@mdashThe Petitioner is representing the residents of the Suraj and Chaand Towers, which are two blocks of primarily residential apartments, housing over 130 families located at No. 128, Kalki Krishnamurthy Salai (L.B. Road), Chennai-41.
2. From the materials placed on record it is seen that the entire area wherein the present residential complex has been raised and the adjoining land, wherein a theatre, by name Jayanthi Theatre, is lying, belong to one D. Ramanujam. He divided the lands into two plots and utilised the front plot for the construction of the theatre and sold the rear plot to the developers of the apartment complex. For the purpose of obtaining planning permission for construction of multi storey residential building at Door No. 128, L.B. Road, the said D. Ramanujam/owner of the property gifted 809 sq.mt. land to the Corporation of Chennai for public purpose, under a gift deed dated 14.5.1993. But, according to the Respondents, though the gift deed was executed by the original owner, the land was not handed over to the Corporation, but a compound wall was constructed by the Petitioner Association at a length of 80.05 meters and height of 2 meters, by encroaching upon the gifted land. Hence, a notice u/s 222 of the Chennai City Municipal Corporation Act, dated 18.4.2002, was issued to the Secretary of the Petitioner Association by the Corporation of Chennai, requiring them to remove the encroachment and vacate from the encroached Corporation land. This notice was challenged by the Petitioner Association in W.P. No. 15474 of 2002 and a learned single Judge of this Court, by the order dated 7.12.2010, observing that no details such as survey number and other identifying features of the land, alleged to have been encroached and ordered to be removed, are furnished in the impugned notice, has allowed the writ petition with a liberty to the Respondents 2 and 3 to issue fresh notice, giving details of the land, allegedly encroached by the encroacher, afford opportunity to him and then pass appropriate orders strictly in accordance with law.
3. Pursuant thereto, a notice dated 2.3.2011 was issued to the Petitioner, fixing the date of enquiry as 21.3.2011. According to the Petitioner, the entire enquiry proceedings lasted for approximately 30 seconds and even though, they were preparing to file the written submissions with the Assistant Executive Engineer immediately after the general elections, as has been informed to them by the Commissioner, they have received the impugned order dated 7.4.2011 on 10.4.2011, as if the Petitioner has not produced any records in support of their claim and further directing to demolish the compound wall. Aggrieved, the Petitioner has come forward to file this writ petition.
4. Heard the learned Counsel on either side.
5. The fact that the original owner had executed the gift deed in favour of the Corporation, on 14.5.1993, while obtaining planning permission to construct the flats, has not been denied on the part of the Petitioner. Their contention is that the compound wall is in existence for more than 50 years and the area within the compound wall viz. the passage is an access to their flats and the passage ends with their flats. It is also their further contention that the 33 feet public road on the Northern side of their flats is also a blind end, and, therefore, removing the compound wall will pave way for unauthorised occupation and encroachments. It has also been their case that the compound wall has been put up only with an intention to safeguard the property and prevent encroachment.
6. The Petitioner claimed shelter u/s 222(2) of the Chennai City Municipal Corporation Act, 1919 (hereinafter referred to as the Act), by contending that the wall is in existence for the last 50 years and therefore, the Petitioner is entitled to the protection u/s 222(2) of the Act.
7. Therefore, let us now see as to what the Section 222 of the Act provides for. The said Section reads as follows:
222. Removal of encroachments -
(1) The Commissioner may by notice require the owner or occupier of any premises to remove or alter any projection, encroachment or obstruction (other than a door, gate, bar, or ground-floor window) situated against or in front of such premises and in or, over, any street or any public place, the control of which is vested in the corporation.
(2) If the owner or occupier of the premises proves that any such projection, encroachment or obstruction has existed for a period sufficient under the law of limitation to give him a perspective title or where such period is less than thirty years, for a period of thirty years or that it was erected with the consent of any municipal authority duly empowered in that behalf, and that the period, if any, for which the consent is valid has not expired, the corporation shall make reasonable compensation to every person who suffers damage by the removal or alteration of the same.
8. Relying on this provision of law, it has been contended on behalf of the Petitioner, by the learned Counsel appearing on their behalf, that Section 222(2) of the Act, makes an exception in a case of such structures which are in existence for over 30 years and provides that no demolition thereof can take place, unless and until the compensation therefore is determined and in the instant case, although the Petitioner is not seeking any monetary compensation, the issue remains that the Respondents cannot take any action unless the welfare of the Petitioner''s members is safeguarded.
9. This argument advanced on the part of the Petitioner, in our considered opinion, is nothing but misreading and misquoting the provision of law. This provision deals with ''encroachment'' in existence for a period of thirty years or so, as mentioned therein. In the case on hand, the entire extent of the land, now housing not only the theatre but also the Petitioner flats was the private property of its original owner D. Ramanujam, who executed the gift deed in favour of the Corporation on 14.5.1993 while obtaining planning permission for construction of multi storey residential building. While according to the Petitioner, the wall was in existence for the last fifty years, according to the Respondents, even though the gift deed was executed by the original owner, the land was not handed over to the Corporation, but a compound wall was constructed by the Petitioner Association at a length of 80.05 meters and height of 2 meters, by encroaching upon the gifted land. Even presuming, without admitting, that the compound wall was in existence for the last 50 years or so, since admittedly it was in the property belonging to its original owner till the time of executing the gift deed on 14.5.1993, the compound wall became an ''encroachment'', in the strict terms of Section 222(2) of the Act on and from 14.5.1993 and having found the encroachment, the Respondents have issued the notice required u/s 222(2) of the Act on 18.4.2002, which was challenged by the Petitioner by filing W.P. No. 15474 of 2002 before this Court. Only in pursuance of the direction issued by a learned single Judge of this Court, the present impugned order came to be passed on the Petitioner. Therefore, the Petitioner cannot seek any benefit u/s 222(2) of the Act, as if the wall continued to be an ''encroachment'' for the last 50 years. It follows, that the so-called generosity exhibited on the part of the Petitioner that they are not seeking any compensation u/s 222(2) of the Act from the Respondents, remains only as a desperate attempt made on their part.
10. It is to be pointed out that even at the outset, the learned Counsel for the Petitioner repeatedly argued that in spite of the direction of a learned single Judge of this Court in the earlier round of litigation, in W.P. No. 15474 of 2002, to the Respondents, to furnish the details such as survey number and other identifying features of the land, no such details have been furnished in the present impugned notice also. But, having found that the impugned notice specifies that the Petitioner has encroached and constructed a compound wall in the gifted land portion of area 809 m2 for forming road in Survey No. 41/4A1 and 41/2B of Thiruvanmiyur Village, further giving boundaries, we rejected this argument of the learned Counsel for the Petitioner, in our order dated 15.6.2011. By the said order dated 15.6.2011, we have directed the Respondents to inspect the petition mentioned property on 16.6.2011 at 11.00 a.m. and to demarcate the encroached portion and file a comprehensive report before us on 20.6.2011, for which the learned Counsel for the Petitioner has also accepted. We have also directed the Petitioner to be present at the time of inspection of the authorities and posted the matter to 20.6.2011.
11. Accordingly, when we have taken up this matter for further hearing on 20.6.2011, the Respondents have filed their report along with a sketch showing the encroachment. From this report and the sketch annexed thereto, it is seen that the gifted land is 69.38 meters length and 11 m. width, admeasuring 809 sq.mt. and is bounded on North by a 33 feet public road (L.B. Road third street); on the South by Jayanthi theatre compound wall; on the East by L.B. Road and on the West by the Petitioner''s property namely Suraj and Chand Towers. It is also seen that a steel gate has been put up by the Petitioner connecting the compound wall on the gifted land portion and Jayanthi theatre compound wall at Eastern end and the encroached land is thus well protected by the compound wall and gate put up by the residents of the Petitioner building with clear intention to keep away from public use and the Petitioner Association is now using the space as parking lot and for recreational purpose. In the same report, it has also been submitted on the part of the Respondents that if the compound wall is demolished, the gifted land portion will be free from encroachment and opened for public use and the Chennai Corporation will develop the land as per the needs of public.
12. Objections to this report filed on the part of the Respondents have been submitted by the Petitioner, stating that the land in question is open to access by any member of the public who has to access the apartment buildings and the pathway is incapable of being used as a public way since it leads only the residential apartments and the public road appurtenant to the wall also leads only to a dead-end and that the pathway is being used only for ingress into and egress out of the residential apartments. Terming the enquiry conducted by the second Respondent as cursory and did not afford the Petitioner a fair chance to set out his objections to the notice issued, the Petitioner further submitted that they have not encroached on the land by constructing any wall and no prejudice would occasion o the Respondents or the members of the general public by the presence of the wall, while on the other hand, its demolition would affect the safety and security of the 130 families occupying the residential apartments.
13. When there is no controversy with regard to the fact that the land in question was gifted to the Corporation by the original owner, as required under law, and thus the Corporation has acquired the title to the same, it is absurd on the part of the Petitioner to claim any right over the property. ''One''s liberty ends, where the other man''s nose starts'' is the basic principle of Law of Torts. This principle applies to the case on hand also, in the sense, the Petitioner cannot take a stand that until and unless they encroach upon the land belonging to the Corporation, the safety and security of the inmates of the flats cannot be protected. The intention of the Petitioner to grab the public property is clear from their erecting a gate on the Eastern side, adjoining the Jayanthi theatre. Having encroached upon the land belonging to the Corporation, the Petitioner is offering lame excuses, citing the safety and security of the inmates of the flats, which we are unable to appreciate.
14. The learned Counsel for the Petitioner, having accepted to demarcate the encroachment, when we passed the order on 15.6.2011, cannot turn around and say once again that if the wall on the encroached land is demolished, it will cause much inconvenience to the residents of the flats.
15. When there is no doubt that the land has been gifted to the Corporation by the original owner, as required under law, and when the Petitioner cannot claim any benefit u/s 222(2) of the Act, the Petitioner cannot have any legs to stand before us.
Accordingly, this writ petition is dismissed. The Respondents are directed to demolish the wall on the encroached portion of the land, as has been shown in the sketch appended to their report dated 18.6.2011, within a period of one week from the date of receipt of a copy of this order, that too at the cost and expenditure of the Petitioner. No costs. Consequently, M.P. No. 1 of 2011 is also dismissed.
