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2012 DIGILAW 151 (MAD)

M/s. Gnanaguru Developers Pvt. Ltd. , Rep. by its Director L. S. Abhinesha Babu v. The Tahsildar Taluk Office – Tambaram

2012-01-09

VINOD K.SHARMA

body2012
Judgment :- 1. The petitioner has approached this Court with prayer for issuance of a writ in the nature of Mandamus, directing the respondents herein to consider the representation dated 11.12.2010, and also the representation through Telegram dated 27.01.2011 for the purposes of conducting a joint survey to demarcate the lands of the petitioner situated in S.Nos.53/1B, 53/3A, 53/3B, 53/4B, 53/5B, 53/6B, 53/7, 54/2B, 54/3B, 68/1B, 68/2 and 69/1A in Town S.Nos.3 to 14 in Ward No.F, Block No.2024, measuring about 3.578 acres in G.S.T.Road, Irumbuliyur Village, Tambaram Taluk, Chennai. 2. Learned counsel for the petitioner was directed to assist this Court, to show cause under what provisions of law, the respondents could be directed to conduct joint survey and demarcate the land, as prayed for, in this writ petition. 3. In response to the query raised by this Court, learned counsel for the petitioner vehemently contended that according to the minutes of the meeting on NOCs for processing of MSB applications for issuing PP in CMDA, many decisions were taken and one such decision was that the NOC from Railways as per the Office Circular BC1/25707/2005 dated 22.06.2006 would be required, if the site falls within 30 mtr. from Railway boundary. 4. However, the decision taken in the meeting was that NOC from Railways need not be insisted upon as clarified and that the PP may be issued subject to the condition that the concerned Local Body has to obtain clearance from Railways during approval of building permit in CMA and not in city limit, as per the provisions of the respective Local Body Act. 5. Learned counsel for the petitioner also referred to the letter dated 21.01.2009, issued by Southern Railway on the question of No Objection Certificate for proposed construction of residential building at Tambaram. 6. It is the contention of the learned counsel for the petitioner that subsequently, this request was modified and the petitioner had changed it to multi-speciality building. The reference was also made to the letter dated 24.03.2009, wherein the petitioner was directed to furnished the following details: "1. The land plan sketch with proposed site marked as prepared by Division and approved is to be sent. 2. S.Nos. of the site and location in respect to BG/MG track (KM Post) to be marked in the plan. 3. The reference was also made to the letter dated 24.03.2009, wherein the petitioner was directed to furnished the following details: "1. The land plan sketch with proposed site marked as prepared by Division and approved is to be sent. 2. S.Nos. of the site and location in respect to BG/MG track (KM Post) to be marked in the plan. 3. The issue of NOC application is to be sent through proper channel (ie) Chief Engineer/CN/MS and copy addressed to Dy.CE/GC/Ms" 7. The learned counsel also made reference to the letter dated 24.09.2009, wherein direction was issued to get the certification of land plans from the Revenue Authorities for site in question to process the NOC case further. 8. It would be seen none of these letters deals with joint survey or demarcation of land by the Railways, even otherwise right of demarcation falls within the jurisdiction of revenue authorities. 9. Learned counsel for the petitioner placed reliance on the judgment of the Honble Supreme Court in the case of A.P.SRTC and others vs. G.Srinivas Reddy and Others, (2006) 3 SCC 674 , wherein the Honble Supreme Court was pleased to lay down as under: "(14.) We may, in this context, examine the significance and meaning of a direction given by the court to "consider" a case. When a court direct an authority to "consider", it requires the authority to apply its mind to the facts and circumstances of the case and then take a decision thereon in accordance with law. There is a reason for a large number of writ petitions filed in the High Courts being disposed of with a direction to "consider" the claim / case/ representation of the petitioner(s) in the writ petitions." 10. This judgment is totally irrelevant to the question raised in the writ petition, i.e. whether Railways can be directed to demarcate the land by joint survey, as prayed for in this writ petition. 11. Learned counsel for the petitioner thereafter referred to the judgment of the Honble Supreme Court in the case of Saraswati Industrial Syndicate Ltd. etc. vs. Union of India, Air 1975 SC 460 . 11. Learned counsel for the petitioner thereafter referred to the judgment of the Honble Supreme Court in the case of Saraswati Industrial Syndicate Ltd. etc. vs. Union of India, Air 1975 SC 460 . This judgment deals with the powers of High Courts to issue writ under Article 226 of the Constitution of India, which reads as under: "(24.) As the appeals fail on merits we need not discuss the technical difficulty which an application for a writ of certiorari would encounter when no quasi-judicial proceeding was before the High Court. The powers of the High Court under Article 226 are not strictly confined to the limits to which proceedings for prerogative writs are subject in English practice. Nevertheless, the well-recognised rule that no writ or order in the nature of a Mandamus would issue when there is no failure to perform a mandatory duty applies in this country as well. Even in cases of alleged breaches of mandatory duties, the salutary general role, which is subject to certain exceptions, applied by us, as it is in England, when a writ of Mandamus is asked for, could be stated as we find it set out in Halsburys Laws of England (3rd edition, Vol.13 p.106); "As a general rule the order will not be granted unless the party complained of has known what it was he was required to do, so that he had the means of considering whether or not he should comply and it must be shown by evidence that there was a distinct demand of that which the party seeking the mandamus desires to enforce, and that that demand was met by a refusal." 12. There can be no dispute with the proposition of law, laid down in this judgment, but law is also well settled that in order to seek writ of Mandamus, the petitioner is to not only show the legal right, but also the corresponding legal obligation on the respondents. 13. Nothing has been shown in spite of opportunity given, for showing any provisions of law, which envisage demarcation of boundary by Railways authorities by joint survey. 14. The direction was also issued to the petitioner to get requisite site plan from the Revenue department, as referred to above. In absence of there being any legal obligation for joint survey, no writ of Mandamus, as prayed for, can be issued. 15. 14. The direction was also issued to the petitioner to get requisite site plan from the Revenue department, as referred to above. In absence of there being any legal obligation for joint survey, no writ of Mandamus, as prayed for, can be issued. 15. Consequently, finding no merit in this writ petition, it is ordered to be dismissed. 16. No costs. 17. It is made clear that in this order, the question decided is only with regard to right of the petitioner to get demarcating the land by joint survey from the revenue authorities and no opinion has been expressed on the right of the petitioner for No Objection Certificate.