[Order of the Court was made by A.SELVAM, J.] This writ petition has been filed under Article 226 of the Constitution of India praying to call for records relating to the order dated 17.07.2008 passed by the fifth respondent in respect of pathway comprised in T.S.No.43 of Ward 42, Block AG15, Indian Bank Colony, Simco Meter Road, Tiruchirappalli Taluk and District and quash the same and also for directing the respondents 1 to 6 to remove the encroachments committed by the respondents 7 and 8 of the said street, by way of issuing a writ of certiorarified mandamus.
2.The material averments made in the petition are that the petitioner has purchased Plot No.1 comprised in S.F.No.173/1A admeasuring 2,862 square feet by virtue of a registered sale deed bearing No.4151, dated 20.10.2005. The plot purchased by the petitioner is situate immediately on the southern side of the road and the same vests with the fifth respondent/Corporation. There is a clear mention in the sale deed executed in favour of the petitioner. After purchase the petitioner has made arrangements to put up construction and the plan submitted by the petitioner has been duly approved by way of proceedings No.F1/446/2005, dated 19.10.2005. Even in the plan, the existence of road is mentioned. After conducting recent survey, the Department of Survey and Settlement has assigned T.S.No.32 to the property of the petitioner and immediately on the western side of the property of petitioner T.S.No.31 is given. On the north of the property of the petitioner, Corporation Road is situate in T.S.No.43. Even in the Survey Sketch, the said road has been clearly mentioned. The road which situates immediately on the northern side of T.S.Nos.31 and 32 is running east-west and the same touches Trichy-Sathanur Main Road which situates on further west of the property of the petitioner. The said road has been in existence from time immemorial. The petitioner and others are having access to Trichy- Sathanur Main Road by way of using the disputed road. On the northern side of the said road, the property of the seventh respondent is situate. The length of east-west road is 140 feet and its width is 10 feet. The seventh respondent has gradually encroached the said road. Even in the sale deed which stands in the name of the seventh respondent, the road in dispute has been mentioned. The seventh respondent and others are not having any semblance of right over the same. The petitioner has submitted a representation in person to the respondents on 16.12.2005 and on 12.09.2006 a registered letter has also been sent. But the same have not been considered. The petitioner has filed a writ petition in W.P(MD)No.10672 of 2006 on the file of this Court, wherein a specific order has been passed to consider his representation. The respondents 5 and 6 have failed to discharge their duties. The seventh respondent is highly influential person. The eighth respondent is under the control of the seventh respondent. The fifth respondent has passed the impugned order dated 17.07.2008 by way of saying that the petitioner should approach Civil Forum for redressing his grievance. Under the said circumstances, the present writ petition has been filed for getting the reliefs sought therein.
3.In the counter filed on the side of the respondents 7 and 8, it is averred that the present petition has been filed with mala-fide intention so as to harass the respondents 7 and 8. The claim of the petitioner is totally illegal and also against the materials available on record. Only on the basis of fabricated documents, the present writ petition has been filed. In the place mentioned in the petition, there is no road. A team of experts from Survey Department under the head of Regional Deputy Director of Survey has verified the boundaries with documents and ultimately found that there is no road in the disputed place. The order passed by the competent authority has attained finality and there is no merit in the petition and the same deserves to be dismissed.
4.The consistent case putforth on the side of the petitioner is that the house plot of the petitioner is comprised in T.S.No.32 and its western side is in T.S.No.31. The house plot of the seventh respondent is comprised in T.S.No.30. In between T.S.Nos.30, 31 and 32, 10 feet width road is situate and the same touches Trichy-Sathanur Main Road.
5.The main contention putforth on the side of the respondents 7 and 8 is that in between T.S.Nos.30, 31 and 32, no east-west road is situate. A team of surveyors has inspected the disputed road, measured the same and ultimately found that there is no road.
6.Considering the rival contentions putforth on the side of the petitioner and respondents 7 and 8, the only point which involves in the present writ petition is as to whether an east-west road is in existence in between T.S.Nos.30, 31 and 32?
7.The learned counsel appearing for the petitioner has vehemently contended to the effect that in the sale deed which stands in the name of the petitioner, an east-west road has been shown as northern boundary and likewise in the sale deed which stands in the name of the seventh respondent, the said road has been shown as southern boundary and further the predecessor in title of both parties, has executed a gift deed in favour of the fifth respondent wherein also the disputed road and other roads have been mentioned and immediately on execution of the said gift deed, all roads including the disputed road are vested with the fifth respondent, but the fifth respondent instead of removing encroachments, has passed the impugned nebulous order and under the said circumstances the present writ petition has been filed for getting the reliefs sought therein.
8.The learned counsel appearing for the respondents 7 and 8 has advanced his argument to the effect that in the disputed place, there is no road at all and the Survey Department has conducted proper survey and passed its orders on 12.12.2007, wherein it has been clinchingly mentioned to the effect that there is no road in the disputed place and therefore the claim of the petitioner is highly erroneous.
9.The learned counsel appearing for the respondents 5 and 6 has contended to the effect that the lay-out mentioned in the petition is nothing, but unapproved lay-out and the roads which are in existence in the said lay-out are not vested with the Corporation and under the said circumstances the petitioner has been properly directed to work out his remedy through Civil Forum.
10.On the basis of the divergent submissions made on either side, the Court has to look into the following documents. The seventh respondent has purchased his property by virtue of sale deed dated 07.12.1981, wherein the disputed road has been shown as southern boundary. Likewise, the petitioner has purchased his property by virtue of registered sale deed dated 20.10.2005, wherein also the disputed road has been shown as northern boundary. If really such road has not been in existence, definitely in the sale deeds dated 07.12.1981 and 20.10.2005, the said road would not have been shown as one of the boundaries. Further on the side of the respondents 7 and 8, no argument has been putforth to the effect that in the sale deed dated 07.12.1981, the southern boundary has been erroneously mentioned. The entire contention putforth on the side of the respondents 7 and 8 is only based upon the order passed by the Survey Department. It is true that the Survey Department has measured the disputed area and passed the order dated 12.12.2007. Simply on the basis of the measurements given in the Survey Report, the Court cannot come to a conclusion that there is no east-west road in the place mentioned in the petition. As pointed out earlier, if there is no such road, the same would not have been mentioned in the sale deeds of the seventh respondent and petitioner. Since clear four boundaries are given in both the sale deeds, both the petitioner and the seventh respondent are entitled to get extent after deducting the width and length of the said road.
11.It is a settled principle of law that boundaries prevail over area. Even on the basis of settled principle of law, both the petitioner and seventh respondent can claim their right only after excluding the width and length of the road mentioned in the petition. Therefore on the basis of measurements given by Survey Department, the Court cannot come to a conclusion that there is no road in the place mentioned in the petition. Under the said circumstances, the contention putforth on the side of the respondents 7 and 8 is sans merit.
12.Now the Court has to look into the contention putforth on the side of the fifth respondent. It is an admitted fact that the lay-out mentioned on the side of the petitioner is nothing, but an unapproved. The specific case of the fifth respondent is that no roads including the disputed road are vested with the fifth respondent. For the purpose of dispelling the contention putforth on the side of the fifth respondent, the settlement deed executed by one S.M.Gajendran in favour of the fifth respondent has been submitted on the side of the petitioner, wherein it has been clearly stated that all roads are donated in favour of the fifth respondent for maintenance. Therefore, the fifth respondent cannot disown its responsibility. Since by virtue of the settlement deed dated 13.11.2015 all roads are vested with the fifth respondent, the fifth respondent is a competent authority to remove encroachment if any in the disputed road.
13.It has already been pointed out that the fifth respondent has simply passed the impugned order by way of saying that the petitioner should seek his remedy through Civil Forum. Since by virtue of the settlement deed dated 13.11.2015 all roads including the disputed road are vested with the fifth respondent, the impugned order passed by the fifth respondent is totally illegal and the same is liable to be quashed and further the fifth respondent is the proper authority to remove the encroachments alleged to have been made by the respondents 7 and 8. Under the said circumstances, the present writ petition is liable to be allowed.
14.In fine, this writ petition is allowed without costs and the impugned order dated 17.07.2008 passed in Na.Ka.No.F1/937/06/pon, by the fifth respondent is quashed and the fifth respondent is directed to remove encroachment if any in the disputed road under due process of law within a period of three months. Consequently, connected Miscellaneous Petitions are closed.
To
1.The Special Commissioner and Director of Survey and Settlement, Chepauk, Chennai ? 600 005.
2.The Deputy Director, Survey and Settlement, Kalaiarangam Building, Tiruchirappalli ? 620 001.
3.The District Collector, Tiruchirappalli ? 620 001.
4.The Thasildar, Town Hall, Tiruchirappalli ? 620 002.
5.The Commissioner, Tiruchirappalli City Municipal Corporation, Bharadhidasan Salai Road, Cantonment, Tiruchirappalli ? 620 001.
6.The Assistant Commissioner, Ponmalai Zone, Tiruchirappalli City Municipal Corporation, Bharadhidasan Salai Road, Cantonment, Tiruchirappalli ? 620 001.
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