R KRISHNAMOORTHY Vs. COMMISSIONER THIRUTHURAIPOONDI MUNICIPALITY

JUDGEMENT

(1.) THE Writ Petition has been filed praying for the issuance of a Writ of Certiorarified Mandamus to call for the records of the first respondent, the proceedings of the Municipal Council, Thiruthuraipoondi, dated 20. 05. 2002, including the resolution number 139 and to quash the same and direct the respondents 1 to 5 to remove the encroachment made by the respondents 7 to 15 in Survey No. 158,mannargudi road, Thiruthuraipoondi, within a time frame as fixed.

(2.) HEARD the learned counsel for the petitioners as well as for the respondents.

(3.) THE brief facts of the case, as stated by the petitioner, are as follows:-The land in Survey No. 161, Thiruthuraipoondi Town belongs to Arulmigu Bhava Oushadeeshwarar Swami Devasthanam, thiruthuraipoondi. The petitioners' vendor v. K. S. M. Noorudeen and his predecessors were the tenants in respect of ten cents in Survey No. 161. The said Noorudeen was paying pagudhi in respect of the site of the above temple. There was a superstructure put up by Noorudeen's predecessors. Hence, the said Noorudeen and his predecessors are the absolute owners of the superstructure. While so, the Devasthanam had filed a suit against Noorudeen for recovery of possession in respect of the above site before the District Munsif Court, Thiruthuraipoondi. A second appeal had been filed before this Court in S. A. No. 244 of 1974. This Court had held that the tenancy is of a permanent nature and that the Devasthanam can only collect pagudhi from him. While so, Noorudeen has leased out his building to one Babu Iyer for non-residential purpose. The said Babu Iyer, had in turn, sublet the said portion to one radhakrishna Iyer. Since the said superstructure was in a dilapidated stage, Noorudeen had filed an eviction proceedings before the Rent Controller, Thiruthuraipoondi, both against Babu Iyer and Radhakrishna Iyer, in r. C. O. P. No. 2 of 1978, on the ground of demolition and reconstruction. After Babu Iyer had died his legal representatives were added as parties to the said proceedings. Later, the matter was taken up to the Supreme court in Civil Appeal No. 1791 of 1987. At that stage, a compromise was entered into between Noorudeen and the legal representatives of Babu Iyer and Radhakrishna Iyer. The supreme Court by its order, dated 18. 08. 1987, had passed a consent order to the effect that the tenants shall give the vacant possession of the suit premises to the landlord and thereafter, the landlord after demolishing the existing structure, will put up a new structure and the tenant shall be permitted to put up a temporary structure in an area not exceeding 800 sq. ft. , in order to carry on his business. However, since the tenants did not vacate the premises, the landlord, namely, Noorudeen, could not demolish the superstructure in order to reconstruct the same as per their compromise decree. In the mean time, Noorudeen had died and his legal representatives had filed Execution Proceedings in e. P. No. 2 of 1993, before the Rent Controller, thiruthuraipoondi, for delivery of possession. The delivery was ordered on 07. 10. 1993. However, the legal representatives of Babu Iyer, who had filed a suit, before the District Munsif Court, Thiruthuraipoondi, in O. S. No. 632 of 1993, for a declaration that the compromise decree passed in Civil Appeal No. 1791 of 1987 was null and void. The district Munsif by an order, dated 31. 12. 1998, had dismissed the suit. The first appeal was filed in A. S. No. 91 of 1999, on the file of the Principal Sub-Court, Nagapattinam, which was dismissed on 24. 09. 1999. Thus, the judgment and decree passed in O. S. No. 632 of 1993 had become final, since no second appeal had been filed thereafter. While so, the first petitioner and his daughter, the second petitioner herein, had purchased the permanent tenancy rights in respect of the above mentioned property, along with the superstructure, by a sale deed, dated 17. 05. 2000, from the legal representatives of Noorudeen. Thus, the petitioners became the absolute owners of the superstructure in respect of old door. No. 4, Survey No. 161, Thiruthuraipoondi, situated on the southern side of Mannargudi road and the western side of Thiruvarur road. The petitioners had filed an impleading petition before the Rent Controller, thiruthuraipoondi, in E. A. No. 96 of 2000 in E. P. No. 2 of 1993. The impleading petition was ordered on 30. 01. 2002. In the said E. P. No. 2 of 1993, the delivery was effected, on 17. 04. 2002, and the petitioners took delivery of the property through Court. Thereafter, the petitioners have put up constructions in accordance with the orders of the supreme Court, dated 18. 08. 1987, made in Civil Appeal no. 1791 of 1987. Encroachments have been made in the form of thatched huts on the northern side of the petitioners property, in Survey No. 158, belonging to the Highways department and respondents 7 to 15 are in occupation of the huts doing flower business and having petty shops. Unless the encroachments are removed, the petitioners cannot enter the property in question from the northern side and to put up the construction to the extent of 800 Sq. feet, in compliance with the compromise decree passed by the Supreme court. Therefore, the petitioners had sent representations to the first respondent, on 22. 04. 2002, requesting him to remove the encroachments. Since there was no response, the first petitioner had sent a detailed representation, dated 25. 05. 2002, to the first and third respondents, with the copy marked to the second, fourth and fifth respondents and to the other concerned officials, requesting them to take necessary action to remove the encroachments. The fourth respondent had sent a letter to the third respondent in ku. Na. Ka. No. 3879/2002/a5, dated 30. 05. 2002, to take action to remove the encroachments through the municipality, thiruthuraipoondi. The first respondent had sent a reply in na. Ka. No. 2916/2002/f1, dated 31. 05. 2002, referring to the earlier representation of the petitioner, dated 22. 04. 2002, and without referring to his subsequent representation, dated 25. 05. 2002, stating that since the encroachment in survey No. 158 related to the Highways, the petitioners may approach the Highways Department, seeking for necessary relief.