Prayer in W.P No. 5655/08 : The Writ Petition filed under Article 226 of the Constitution of India for issue of Writ of Certiorarified Mandamus to call concerned records relating to the Order No. 44/7018/2007 dated 24.01.2008 passed by the first respondent and quash the same and direct the first respondent to take suitable action against respondents 4 and 5.
Prayer in W.P No. 21772/2009 : The Writ Petition filed under Article 226 of the Constitution of India for issue of Writ of Mandamus to direct the second respondent to register the Sale Deed presented for Registration vide file P. No. 31/09 under receipt No. 8032644 dated 29.04.2009 and release the same within a time limit to be fixed by this Hon'ble Court.
COMMON ORDER
By consent the Writ Petitions are taken up for disposal. Since the issue involved in both the writ petitions raises a common question, they are taken up for disposal together. The challenge in W.P No. 5655/2008 is to an order passed by the District Collector, Villupuram District dated 24.1.2008 and for a direction to take action against the private respondents 4 & 5.
2. The relief sought for in W.P No. 21772/2009 is for a issue of Writ of Mandamus to direct the Sub-Registrar Kandamangalam to register the sale deed dated 29.04.2009 assigned pending document No. 31/2009. The fourth respondent in W.P No. 5655/2008 is the power of attorney agent of the petitioner in W.P No. 21772/2009.
3. The case of the petitioner in W.P No. 5655/2008 is that the respondents 4 & 5 approached the land owners of the agricultural lands in survey No. 9/1, 9/2 & 9/3 near Pondicherry Vilupuram road, and purchased the same and the lands are stated to be adjacent to the land owned by the petitioner. The petitioner would further state that the lands so purchased have been divided into housing plots and without obtaining proper lay out approval, the same are sold to the petitioner. It has been further stated that a complaint was made by the petitioner to the District Collector on 28.02.2009 to stop the sale of unapproved plots. A similar complaint was also made to the third respondent and since no action was taken the petitioner approached this Court and filed W.P No. 28560/07 and this Court by order dated 21.09.2007 directed the District Collector to consider the petitioner's representation dated 28.02.2005 Pursuant to the same the Assistant Director of Panchayat directed the petitioner to appear for an enquiry of 19.11.2007 and thereafter, the first respondent rejected the petitioner's representation, this order of rejection dated 24.01.2008 is assailed in this Writ Petition stating that the first respondent merely acted on the report of the Block Development Officer and failed to see that the 4th & 5th respondents have not obtained any permission from the third respondent for conversion of agricultural lands into housing plots. Further, it is stated that a sale deed register in document No. 619/2005, on the file of the third respondent pertains to places allotted for public purpose, which fact was not considered by the first respondent.
4. A counter affidavit has been filed by the third respondent stating that as per the provisions contemplated in Rule 3 of the Tamil Nadu Panchayat Building Rules, 1997, the owner of the land has to apply for approval of lay out site to the executive authority, who shall get prior concurrence of the Director of Town and Country Planning or Authorised Joint Director or Deputy Director. In terms of Rule 4 of the said rules every person, who intends to construct a building shall submit an application to the executive authority for approval of site and for permission to execute the work. It is further stated the question of approval of lay out or building plan does not arise in respect of sub-divided plots to which the Revenue Survey Sub-Division numbers are assigned. It is further stated that there is no violation of any of the Rules or instructions by the 1st and 3rd respondents. That there is no provision that the 4th & 5th respondents have to obtain permission from the third respondent for conversion of agricultural lands into housing plots and as and when the 4th and 5th respondents apply for approval for lay out plan to the local executive authority and on reference of the said application to the Director of Town and Country Planning the third respondent could allot easementary provisions and this will not be possible, when the parties obtained Revenue Sub-Division. It is further stated that the first respondent proceeded on a wrong premise that if lands were donated to panchayats it would be sufficient for obtaining lay out approval. Therefore, it is submitted that there is no violation of any of the provisions of the Act and Rules.
5. W.P No. 2177/09 has been filed for a Writ of Mandamus to register the sale deed dated 29.04.2009, which is pending as document P No. 31/2009 on file of the second respondent. The petitioner has sought for such relief, since the second respondent stated that the document in question cannot be registered, since the W.P No. 5655/2008 is pending before this Court and the second respondent has sought for legal opinion from the Government Pleader and they are awaiting the same and appropriate action would be taken, based on such opinion. The main ground on which the petitioner has filed this Writ of Mandamus is that the second respondent cannot refuse to register the document on the ground that a Writ Petition is pending at the instance of neighbouring land owner. In fact this legal issue has been settled by the Hon'ble Division Bench of this Court by placing reliance on the decision of the Hon'ble Supreme Court in State of Rajasthan v. Basant Nahata [2005 (4) CTC 606], the Hon'ble Division Bench in the case of Captain Dr. R. Bellie v. Sub Registrar, [2007 3 MLJ 1025], held that the Hon'ble Supreme court in the case of Basant Nahata, referred supra, held that provision Section 22 A of the Registration Act, as amended was held to be unconstitutional and ultra vires Article 14 and 246 of Constitution of India and the executive instructions issued an under the provision in G.O.Ms No. 150, Commercial Taxes Department, dated 22.09.2000 laying out guidelines relating to documents/class of documents as opposed to public policy, was also held to be without jurisdiction. Therefore, there is no power vested with the respondents to impose conditions on the Sub-Registrar of registration not to register documents in respect of lands converted as house sites without approval, unless a no objection obtained from the local body. This Court in R. Sreedher v. Registering Officer), [2008 1 MLJ 342], after referring to the Hon'ble Division Bench Judgment in the case of Captain Dr. R. Bellie, referred supra, held that there is no power with the registering authority for retaining the document after registration or deferring the registration for any reason. Thus in view of the settled legal position as stated above, the second respondent cannot refuse to register and return the document presented by the petitioner on 29.04.2009, which has been assigned pending No. 31/09. Therefore, the petitioner in W.P No. 21772/2009 is entitled to succeed.
6. As noted above the writ petitioner in W.P No. 5655/2008 is aggrieved by the action of the respondents 4 & 5 therein in converting an agricultural land into housing plots. In this regard, it is relevant to note that the respondents 4 & 5 have executed a gift deed in favour of the panchayat in respect of certain area and this document has been registered as document No. 619/05 dated 16.06.2005 As rightly pointed out by the third respondent in the counter affidavit mere executing a gift deed in favour of the local body cannot be taken as if a lay out has been approved. The third respondent has made a specific averment in the counter affidavit by stating that no lay out plan was approved in respect of the lands of the 4th & 5th respondents and therefore the question of enforcing the provisions of the Tamil Nadu Panchayat Building Rules does not arise and that there is no power vested with the third respondent to interfere with Revenue Sub-Division of plots. Therefore, in my view the first respondent was correct in rejecting the request made by the petitioner in his representation dated 28.02.2005 However one erroneous observation is that, by executing the gift deed in respect of the land for public purpose in favour of the panchayat would deem to be an approval to the lay out. This finding is incorrect and the third respondent has also emphatically stated that no lay out approval was granted to the respondents 4 & 5. However such findings may not entitle the petitioner to the entire relief sought for by them, since the third respondent has specifically stated that they cannot be interfere in the case of a Revenue Sub Division.
7. If that be the case, then the only option open to the petitioner would be to agitate his claims against the 4th & 5th respondents before the competent Civil Court. In fact the grievance as stated by the petitioner is that his ingress and egress to his land has been affected and the right of the petitioner to use the “varappu” has also been affected. These aspect could only be agitated before a competent Civil Court and the question of right, title over immovable properties and easmentary and other customary rights have to be only established before a Competent Civil Court. Therefore, the petitioner in W.P No. 5655/2008 is not entitled to the relief sought for in the Writ Petition. However, it is always open to the petitioner to agitate his rights and his grievances against the respondents 4 & 5 in respect of the property before a Competent Civil Court.
8. In the result in W.P No. 5655/2008 is disposed of giving liberty to the petitioner to move the competent Civil Court for vindicating his rights against the respondents 4 & 5 in respect of the usage of his properties and other easementary rights as claimed by the petitioner and if such proceedings are initiated before the competent Civil Court, the same shall be decided on merits and in accordance with law without being in any manner influenced by the decision of this Court in this writ petition.
9. W.P No. 21772/2009, is allowed and the second respondent is directed to register and return the sale deed presented for registration in P. No. 31/09, receipt No. 8032644 dated 29.04.2009 subject to the petitioner remitting the appropriate stamp duty and registration charges and the document shall be released within a period of four weeks from the date of receipt of a copy of this order. Consequently, connected miscellaneous petitions are also closed. However, there shall be no order as to costs.