Jayakumar.R vs Commissioner Palani Municipality

N.Anand Venkatesh, J

This Writ Petition has been filed for the issue of writ of mandamus directing the respondent to remove the dumping yard that has been located in front of the house of the petitioner in order to ensure free ingress and egress to the property belonging to the petitioner by considering the representation made by the petitioner on 10.03.2021.

The case of the petitioner is that a layout was formed and it was granted approval through proceedings dated 27.08.1986 by the respondent Municipality. The further case of the petitioner is that he had purchased Plot No.4, Door No.208 in the layout through a registered sale deed dated 19.11.1999. The specific case of the petitioner is that the entrance to his house is from the Southern side. The grievance of the petitioner is that the respondent Municipality had illegally put up a shed for using the same as an open dump yard and as a result, it has interfered with the petitioner’s free ingress and egress to his house. Hence, the petitioner made a representation in this regard on 10.03.2021 to the respondent. Since the same did not evoke any response, the present Writ Petition has been filed before this Court.

The respondent has filed a counter affidavit. The specific stand taken by the respondent in the counter affidavit is extracted hereunder:

I respectfully submit that petitioner was originally constructed, as a way. However, according to the petitioner’s Building Plan Approval No.9/2014/F1 dated 10.03.2014, the approach road to the petitioner’s building is South-West 9 Meters Road. I respectfully submit that instead of using the entrance in the South-West portion, the petitioner has constructed a wall therein which itself is a deviation for which a deviation notice has been issued as early as 10.06.2015.

I respectfully submit that therefore the petitioner has been using the East-West 9 Meters road through the park as way / approach road to his building which the Municipality has been objecting. Therefore, the sole aim of the petitioner knocking the doors of this Hon’ble Court is only to encroach the Municipality land in which the On-Site Compositing Center is constructed and to use the same as a way to approach his building.

The learned Standing Counsel appearing on behalf of the respondent submitted that there is a typographical error in Paragraph No.6 of the counter and that instead of South-West, it must have been mentioned as “North-South”. The learned counsel submitted that the petitioner instead of utilising the entrance on the North-South portion, is using the East-West portion as the approach to this property. The shed that was put up by the respondent Municipality for the compost yard is on the East-West portion and hence, there was absolutely no obstruction caused to the petitioner for free ingress and egress which is only on the North-South portion.

Per contra, the learned counsel appearing on behalf the petitioner by producing the photographs submitted that the petitioner has been using the Southern portion as his entrance to his property and the shed for the composting yard has been put only on the Southern side by utilising his space and thereby, free ingress and egress has been interfered.

Considering the nature of dispute that has been raised in this case, this Court deems it fit to appoint an Advocate Commissioner to conduct an inspection and to file a report before this Court for more clarity before final orders are passed in this writ petition. Accordingly, Ms.M.Lavanya, practising Advocate of this Court having M.S.No.1650 of 2021 (Cell No.86376 27098) and Ms.C.Geetha, practising Advocate of this Court having E.No.4384 of 2021, Plot No.250, 4th Street, 1st Cross, Kasim Residency, Y.Othakadai, Madurai-625 107 (Cell No.82485 65206) are appointed as Advocate Commissioners.

The learned Advocate Commissioners shall have the plan approval granted for the layout as the base document while conducting the inspection. The learned Advocate Commissioners shall mark the physical features and specifically ascertain the direction from which the petitioner is accessing his house property. That apart, the learned Advocate Commissioners shall also ascertain as to the direction in which the shed has been put up towards the composting yard by the respondent. During the inspection, the petitioner as well as the representative from the respondent Municipality shall be present.

This Court fixes the initial remuneration at Rs.25,000/- (Rupees Twenty Five Thousand only) to the Advocate Commissioners and the petitioner and the respondent Municipality shall pay 50% each towards remuneration.

The Registry shall issue necessary warrant to the learned Advocate Commissioners to carry out the inspection as directed by this Court.

Post this case under the caption for filing report of the Advocate Commissioners on 24.11.2023.”