USHA EVELYN Vs. GOVERNMENT OF TAMIL NADU

JUDGEMENT

(1.) THE writ petition is directed against the proceedings stated to have been pending before the second and third respondents, viz., the Director and the Deputy Director of Town and Country Planning, in respect of granting layout approval in favour of the 9th respondent in LP/DDT/CP(CR) No. 182/2007 and it is also prayed for a direction against the respondents to grant layout approval in favour of the petitioners in respect of the property bearing S.F.46/1 to an extent of 70 cents and S.F. No. 46/2 to an extent of 73 cents in Panambakkam village, Kadambathur Panchayat Union, Tiruvallur Taluk, Tiruvallur District.

(2.) THE petitioners are the son and daughters of late Y. Rajaratnam, who is stated to be the exclusive owner of the above said properties having purchased under a registered sale deed dated 7.1.1963 and after purchase, necessary changes were made in the Revenue Records. It is the case of the petitioners that on 1.9.1982, their father created an encumbrance over the properties by creating a simple mortgage by having obtained loan from one Mithra Sbenezan under a mortgage deed registered as document No.595/82 on the file of the Sub Registrar, Perambakkam. Subsequently,. THE father of the petitioners dies on 14.11.2006 leaving behind him his wife and the petitioners as his legal heirs and his wife also died on 6.3.2007.2(a) It is the case of the petitioners, that the first petitioner came to know through 7th respondent that the above said properties were sold to one Sasidaran, 9th respondent submitted some papers for approval to the layout of plots in the lands. It is the case of the petitioners that in the encumbrance certificate, the father of petitioners Y. Rajaratnam was shown as owner from 1963 and in the year 1982 in the said capacity he has mortgaged the property and the said mortgage was also discharged on 30.4.1987 and he did not execute any sale deed in favour of either the 8th respondent or the 9th respondent and therefore, according to the petitioners, the transaction stated to have taken place on 5.2.2007 and subsequent entries made in the Revenue Records are fabricated one and the encumbrance certificate has been obtained by fraud, misrepresentation, etc.2(b) It is the case of the petitioners that when the said 9th respondent has attempted to change the patta in his name, the same has been defeated by the Tahsildar by order dated 25.10.2007 and the patta stands in the name of father of the petitioners, Y. Rajaratnam. It is the case of the petitioners that the said Y. Rajarathnam having purchased the properties under registered sale deed in the year 1963 from one Thiruburasundari, leased out the property in S.F.No.46/2 under a registered lease deed to one Sundaram refused to vacate the land, which resulted in filing of a suit in O.S.No.1016 of 1981 on the file of District Munsif, Tiruvallur by the father of the petitioners and the trial Court passed a decree on 24.12.1981 and the lessee has been evicted. THE very fact that the father of petitioners mortgaged the properties to Mithra Ebenezan and discharged the same on 30.4.1987 shows that the father of petitioners was the absolute owner of the properties and he was in possession. THErefore, the sale said to have been effected by 8th respondent in favour of the 9th respondent is fraudulent one.2- It is also stated that when the neighbour Subramani attempted to interfere with the possession, the father of the petitioners lodged a police complaint and filed a suit O.S.No.545 of 1983 on the file of District Munsif, Tiruvallur and obtained an order of injunction and the said suit was decreed on 30.7.1983, as against which the said Subramani filed an appeal in A.S. No.8 of 1994 before the Sub Court, Tiruvallur and the Sub Court allowed the appeal on 24.6.1996 by reversing the trial Court judgment. It was an against the judgment of the first appellate Court, the father of the petitioners filed S.A.No. 1770 of 1997 before this Court and during the pendency of the said second appeal, he died on 14.11.2006.2(d) It is the case of the petitioners that the particulars about the second appeal and the suit were not known to the petitioners and the second appeal was dismissed for default and the petitioners later filed petitions for restoration and also to implead the legal representatives along with a petition to condone the delay of about 1053 days. THE said condone-the-delay petition is said to have been allowed on 31.10.2007 and the second appeal was restored to file and the same is pending. It was, thereafter, when the petitioners approached the Village Administrative Officer for payment of kist, the petitioners came to know that the 9th respondent along with Karunakaran, Kempu, Maganathan, Natarajan, Ramu, Mani who had no right, sold the properties to the 9th respondent on 5.2.2007. It is based on the said fraudulent sale, the 9th respondent is stated to have obtained the layout approval from the Director of Town and Country Planning.2(e) It is stated that the petitioners had lodged a police complaint on 2.5.2007 and the same was not registered by the 6th respondent, the Inspector of Police. THEre was a complaint made to the Deputy Director of Town and Country Planning on 4.5.2007 and to the Joint Director of Town and Country Planning on 7.8.2007 and 18.8.2087 raising objections in respect of grant DTP approval to the 9th respondent in respect of the plots which belong to the petitioners.2(f) In spite of the objections, it is stated that the second and third respondents have granted approval and it is against the said approval, the present writ petition is filed on various grounds including that the sale stated to have been effected in favour of the 9th respondent is fraudulent and does not confer any title on him that the entire transaction created by various persons including the 8th respondent transferring the properties in the name of 9th respondent is fraudulent and the approval of layout is illegal since the same should not have been granted to the non-owners and that patta stands in the name of father of the petitioners, apart from raising other legal grounds.

(3.) THE ultimate intention of the petitioners in seeking remedy from this Court under Article 226 of the Constitution of India to declare the sale deed dated 5.2.2007 executed in favour of the 9th respondent is void is patent from the affidavit filed byh the petitioners especially with reference to Ground-7 of the affidavit which is as follows: