IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:03.12.2009 CORAM: THE HON'BLE MR.JUSTICE P.JYOTHIMANI WRIT PETITION NO.21765 OF 2009 AND M.P.NO.1 OF 2009 .. Mrs.J.Shanthi .. Petitioner vs. 1.The Collector Kancheepuram District Kancheepuram. 2.The President Thaiyur Panchayat Thirupporur Panchayat Union Chengalpattu Taluk Kancheepuram District. .. Respondents Writ Petition filed under Article 226 of the Constitution of India praying for issuance of a Writ of Mandamus as stated therein. For petitioner : Mr.M.Vaidyanathan For respondents : Mr.R.Murali Government Advocate for R.1 Mr.N.R.Chandran,Sr.Counsel for Mr.R.Kannan for R.2 .. ORDER The writ petition is filed by the petitioner for direction against the respondents to accept the gift to an extent of 20 cents comprised in Part of S.F.No.1351/5A in Thaiyur Village and Panchayat on behalf of the said Panchayat towards "open space reservation", as stipulated in the planning permit bearing No.Na.Ka.10236/2009 BA2 dated 11.08.2009. 2. The writ petitioner is the absolute owner of the vacant land measuring 2.00 acres comprised in Survey No.1351/3A and https://hcservices.ecourts.gov.in/hcservices/ 1351/5A in Thaiyur village, Chengalpattu Taluk, Kancheepuram District. She applied for a planning permit on 27.02.2009, for constructing residential apartments on the above said site to the Commissioner of Town and Country Planning, Chennai 2. The said application was considered and sanction order was passed on 11.08.2009, permitting the petitioner to construct 184 residential apartments with direction to given an extent of 20 cents to the Thaiyur Village Panchayat towards open space reservation, for which the petitioner has executed a registered gift deed in favour of the second respondent Panchayat. 2(a). It is stated that, according to planning permit, the petitioner has written to the second respondent on 18.8.2009, requesting the second respondent to give willingness to accept the gift deed in favour of the Panchayat as directed by the Commissioner of Town and Country Planning. In the meantime, the petitioner was called upon by the Member Secretary, Mamallapuram Local Planning Authority cum the Deputy Director of Town and Country Planning to comply with the conditions stipulated in the planning permit regarding execution of the gift deed. 2(b). Again, the petitioner has written to the second respondent to accept the gift against 'open space reservation', however, the second respondent has not taken steps. In those circumstances, the petitioner has approached the first respondent, District Collector on 16.09.2009 and 15.10.2009, to depute a person of his choice to accept the gift on behalf of the Panchayat and strangely, there has been no reply. In these circumstances, the present writ petition is filed for direction as stated above. 3. In the counter affidavit filed by the second respondent Panchayat President, while it is admitted that the Commissioner of Town and Country Planning has granted permission on 11.08.2009, to the petitioner for construction of apartments and that the petitioner has approached the second respondent for accepting the gift deed, it is stated that on perusal of the plan it was found that the approach road was shown as 60ft. road and the petitioner has not produced any legal evidence for the same. It is stated that the approach road to the Thaiyur village is only 27 feet and therefore, the second respondent has written to the Highways Department to find out its correctness. It is stated that the petitioner has not produced the copy of the sanctioned CMDA plan, and therefore, the second respondent has disputed the plan submitted by the petitioner for approval to the competent authority. 3(a). It is stated that a complaint was made by the petitioner to the Collector on 16.09.2009, the first respondent herein, who in turn sent a letter asking for explanation from the second respondent, who explained the reasons for not accepting the https://hcservices.ecourts.gov.in/hcservices/ gift and thereafter, the Collector has kept quiet and the Collector has not taken any steps. It is stated that the second respondent has requested the petitioner by letter dated 28.10.2009, to produce the records submitted before the authorities for approval of the plan. 3(b). It is also stated that when the second respondent approached the Village Administrative Officer of Thaiyur village, he has given a statement that the approach road is only 27ft. road and issued FMB Sketch along with a certificate. It is stated that in the Panchayat board meeting held on 5.11.2009, it was decided by majority that if correct plan is produced by the petitioner, the gift would be accepted and the reason given for not accepting the gift is that it does not contains the correct fact. 4. A reference to the condition annexed to the approval dated 11.08.2009 granted by the Commissioner of Town and Country Planning to the petitioner shows that approval has been given for construction of three blocks to the extent of 184 tenants. It is also stated that as per the plan, the portions to be left out for public purposes are to be gifted to the concerned Panchayat. It is based on the same, the petitioner has approached the second respondent to accept a portion by way of gift. In fact, based on the letter by the petitioner, the second respondent has requested the petitioner to produce various records, including the site plan, patta, etc., The petitioner has also enclosed the gift deed to be signed and accepted by the second respondent and even after repeated representations, the second respondent has not replied anything except making the present statement in the counter affidavit as stated above. 5. Mr.N.R.Chandran, learned senior counsel appearing for the second respondent would submit that, the second respondent being the responsible Panchayat, is bound to see that the plan as sanctioned by the Town and Country Planning Authorities is scrupulously followed. It is his submission that when the plan approved by the competent authority shows that the width of the road should be 60 feet, the Divisional Engineer, Highways, Chengalpattu in his letter in Ku.No.4477/2009 EVA1 dated 11.11.2009, has stated that as per the Village Administrative Officer’s certificate the width of the road is 27 feet. The contents of the said letter are as follows: "nfhl;lg; bghwpahsh; (be) mYtyfk;. br';fy;gl;L/ F/vz;/4477/2009/,tm/1-ehs; 11/11/2009 bghUs;: br';fy;gl;L (be) nfhl;lk; - ija{h; https://hcservices.ecourts.gov.in/hcservices/ Cuhl;rpapy; brd;id - khky;yg[uk; rhiyapypUe;J ija{h; Cuhl;rp tHpahf fhahh;tiu bry;Yk; rhiyapd; mfyk; ePsk; mspj;jy; - bjhlh;ghf/ ghh;it: 1/jiyth;. ija{h;. ija{h; Cuhl;rp foj ehs; 12/10/2009/ 2/,t;tYtyf F/vz;/4477/09/,tm-1 ehs; 12/10/2009 3/ cjtpf; nfhl;lg;bghwpahsh; (be) br';fy;gl;L f/vz;/785/09/,tm-1 ehs; 22/10/2009/ 4/,t;tYtyf F/vz;/4477/09/,tm-1 ehs; 27/10/2009/ 5/cjtpf; nfhl;lg; bghwpahsh; (be) br';fy;gl;L f/vz;/657/09/,tm/ehs; 09/11/2009/ /// ghh;itapy; fhQqk; fojj;jpy; cjtpf;nfhl;lg; bghwpahsh; (be) br';fy;gl;L mth;fs; ghpe;Jiuapd;go ija{h; rhiy fpkP/0/0-2/0 tiu , f;nfhl;l guhkhpg;gpy; cs;s khtl;l ,ju rhiyahFk;/ ,r;rhiyapd; mfyk; FMB tiuglj;jpd; goa[k;. fpuhk eph;thf mYtyh; rhd;wpjH; goa[k; 8/4kP (27mo) cs;ssJ vd bjhptpj;Jf; bfhs;fpnwd;/ xk;/f/nyhfehjd; nfhl;lg;bghwpahsh; (be) br';fy;gl;L/ 6. On the other hand, in the letter produced by the learned counsel for the petitioner issued by the Assistant Divisional Engineer, Highways, Chengalpattu Sub Division in the letter No.12/2009/Supt. dated 15.06.2009, it is stated that the available right of way is about 20 mts. The contents of the said letter are as follows: "Letter No.12/2009/Supt./Dated 15.06.2009 Madam, Sub: Kanchipuram District – Chengalpattu Taluk, Thaiyur "B" Village – Thaiyur to Kayar Road – Road width details – Regarding. https://hcservices.ecourts.gov.in/hcservices/ Ref: Your letter dated 12.06.2009. .. Adverting to your letter cited it is informed that the Thaiyur Road from KM 0/0 – 2/0 is classified as "Other District Road" maintained in Chengalpattu Highways sub division. This road branches from KM 37/4 of Chennai – Mamallapuram Road on right side. The existing carriage way is single lane. But available Right of Way is about 20m throughout this road. Considering the future augmentation of traffic the Road will be widened to two lane carriageway. Sd/-xxxxxxxx Assistant Divisional Engineer(H) Chengalpattu Sub Division Chengalpattu." 7. The Village Administrative Officer, Thaiyur village in a certificate dated 3.11.2009 has stated as follows: 46ija{h; 'B' 3/1/2009 rhd;W fh";rpg[uk; khtl;lk; br';fy;gl;L tl;lk; 46 ija{h; 'B' fpuhkk;. g[y vz;/1351-1Vy; OMR rhiyapypUe;J fpis rhiyahf br';fz;khy; rhiy bry;fpd;wJ/ g[y vz;/1351 -5V xl;odhw;nghy; me;j rhiyapd; mfyk; 8/4 kPl;lh; vd (27mo) FMB mst[go cs;sJ vdr; rhd;wspf;fpd;nwd;/ Sd/-xxxxx Village Administrative Officer No.46, Thaiyur 'B' Village Chengalpattu Taluk." Indicating that the width of the road is 8.4 mt. (27 ft.) , the second respondent Panchayat has passed resolution on 5.11.2009 in the following words: " To await for reply from the competent authorities and therefore till such reply is received not to accept the gift." 8. In the light of the dispute raised regarding the factual situation about the width of the road as against the plan approved by the Town and Country Planning Authorities and the second respondent has not decided to accept the gift only because of the factual discrepancies stating that the road portion left out is https://hcservices.ecourts.gov.in/hcservices/ not in accordance with the approved plan, I am of the view that the writ petition should be disposed of with direction against the first respondent District Collector to depute one of his officials to inspect the concerned place in Survey Nos.1351/3A and 1351/5A of Thaiyur village with the help of the planning permit issued by the Commissioner of Town and Country Planning, Chennai in Na.Ka.No.10236/2009 BA2 dated 11.08.2009 and ascertain as to whether the public places offered to be gifted under the planning permit are in existence as per the measurements and file a physical verification report to the second respondent with a copy to the petitioner within a period of four weeks from the date of receipt of copy of this order. It is made clear that while making the physical inspection, the first respondent may ask the petitioner as well as the second respondent to be present. If the measurements are in accordance the approved plan, on intimation by the first respondent, the second respondent shall forthwith accept the gift presented by the petitioner. If the measurements are not in accordance with the approved plan, the petitioner shall take necessary steps to prepare a correct plan and get it approved and then approach the second respondent for accepting the gift. With the above directions, the writ petitions is disposed of. No costs. Connected miscellaneous petition is closed. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar Kh To 1.The Collector Kancheepuram District Kancheepuram. 2.The President Thaiyur Panchayat Thirupporur Panchayat Union Chengalpattu Taluk Kancheepuram District. +1cc to Govt. Pleader Sr 66018 +1cc to Mr.R.Kannan, Advocate Sr 65847 +1cc to Mr.M.Vaidyanathan, Advocate Sr 65816 TS(CO) km/10.12. W.P.No.21765 of 2009 https://hcservices.ecourts.gov.in/hcservices/