R.N.Ramachandran vs The Member Secretary on 9 January, 2008

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Madras High Court

R.N.Ramachandran vs The Member Secretary on 9 January, 2008

Both the appeals having preferred by common appellant against common judgment dated 3rd Jan., 2003, passed by learned single Judge in two different writ petitions, they were heard together and disposed of by this common judgment.

The first writ petition, W.P. No.15041/00 was preferred by the respondent, M/s.River View Colony Low Income Group Flat Owners Welfare Association (hereinafter referred to as 'Association') for direction on the Chennai Metropolitan Development Authority (hereinafter referred to as 'CMDA'), Corporation of Chennai and Chennai Metrowater Supply and Sewerage Board (hereinafter referred to as 'Metrowater Supply Board') not to sanction the plan of the appellant, who was the 5th respondent in the said case for putting up construction in plot No.3127-C, River View Colony, Anna Nagar, Chennai and to direct the Tamil Nadu Housing Board (hereinafter referred to as 'Housing Board') to hand over possession of the said plot in favour of the association for maintaining the plot as common space.

Another writ petition, W.P. No.14922/02 was preferred by the respondent W.S.Jayadev and 12 others, the respondents of the said case from interfering with their right to use plot No.3127-C, which, according to them, was shown as childrens' play space in the plan exhibited by Housing Board when the LIG Flats of River View Colony was offered for sale to them. Prayer was also made for maintenance of the existing sewerage line and water connection on the said plot and for prohibiting the appellant, who was the 5th respondent in the said case from obtaining any planning permission for putting any construction over the said plot No.3127-C.

2. Learned single Judge, by impugned common judgment dated 3rd Jan., 2003, while came to a conclusion that the Housing Board was disentitled to sell the plot to private parties, observed that the appellant had conceded to take an alternative plot in an earlier case, which cannot be given a go-by on account of a compromise. Both the writ petitions were allowed with direction as sought for in those cases.

3. From the pleading made by the parties and other records, the following facts emerge :-

In between the year 1968-69, the Housing Board constructed four low income blocks, each four blocks having four flats total 16 allotteeswere allotted such flats in the year 1970. According to association, portion of the land having 'Plot No.3127-C', was marked as childrens' play space. According to appellant, the land in question, which was open space, being a separate independent land abutting 120 feet road, had been assigned as plot No.3127-C and proposed for auctioning. The proposal was approved by the State Government in their letter No.1034/NI/83-3 dated 21st April, 1981 and directed the Housing Board to dispose of the said plot No.3127-C by way of auction. An advertisement for public auction of plot No.3127-C was made in 1982 in which the appellant took part in the auction on 21st Feb., 1982 and being the highest bidder, the said plot was allotted on 7th May, 1982. The appellant deposited the full cost of Rs.5,47,600/= on 30th Sept., 1985 and having obtained No Objection Certificate on 21st Feb., 1989, it was confirmed in his favour. No objection was raised by any person, including the association or its members, i.e., the writ petitioners.

After about six years of public auction, the owners of the flat, D.Damodaran and 12 others, preferred a writ petition No.3284/88 for a writ of prohibition and grant of injunction in any way from interfering with the peaceful possession of plot No.3127-C. In the said case, plea was taken that plot No.3127-C forms part of common land of their block and left as an common space for LIG allottees. Therefore, the allotment of plot No.3127-C has to be cancelled. Initially, interim injunction was passed by this Court on 25th March, 1988 in W.M.P. No.4848/88 against the proposed shifting of the drainage and water supply pipelines that were running in plot No.3127-C, which was made absolute on 21st July, 1988. In the meantime, the Housing Board, vide memo dated 16th Aug., 1989, issued general instructions to all allottees, who had not started construction even after lapse of stipulated period as per the agreement conditions. A notice was served on appellant on 12th Dec., 1989, to start construction of his plot and bring upto basement level and he was informed that on failure the allotment would be cancelled. In view of the absolute injunction granted in the writ petition, no objection certificate was not issued to plot No.3127-C and, therefore, the appellant was impleaded in W.P. No.3284/88. This Court, after hearing the parties, vide order dated 20th March, 1990, directed the Housing Board not to take any further action on the notice in respect of plot No.3127-C pursuant to letter dated 12th Dec., 1989. The writ petition, W.P. No.3284/88 was finally dismissed on 17th June, 1991, with observation that the dispute in question is a matter of civil court and, thereby, remedy is before the civil court. The owners of the flat preferred W.A. No.821/91 against the said judgment, but the same was also dismissed by Division Bench of this Court on 11th July, 1991, having withdrawn by them. However, they chose to prefer a review application No.19/91 against the order dated 17th June, 1991 in W.P. No.3284/88, which was also dismissed on 20th July, 1991. Against the above order of dismissal, W.A. No.1209/91 was preferred by the allottees, which was also dismissed on 31st Dec., 1991, whereinafter River View Colony Low Income Group Flat Owners Welfare Association preferred civil suit, C.S. No.1565/92, which has been transferred to Chennai City Civil Court and numbered as O.S. No.9597/96.

The appellant preferred a writ petition, W.P. No.18840/92 for a direction on Housing Board, Metrowater Supply Board, Corporation of Chennai and CMDA to remove the obstruction, encroachment, including the service line from plot No.3127-C sold to him by Housing Board and to the Corporation to sanction planning permit for construction of a building. In the said case, this Court, vide order dated 26th April, 1995, directed the Housing Board to offer alternative site, more or equal to the site already purchased by the appellant on or before 31st June, 1995. It is informed that the then legal advisor of the Housing Board at that time, submitted to the Court suggesting plot No.4415-A2 at Anna Nagar for allotment to the appellant. In view of the aforesaid submission, High Court passed orders on 1st Aug., 1996, asking the Housing Board to hand over plot No.4415-A2 to the appellant within four weeks. Housing Board, thereafter, filed an affidavit in W.P. No.18840/92 to pass an appropriate order since plot No.4415-A2 does not come under Residential Use Zone, but it was rejected by this Court on 30th Oct., 1996.

Against the said order, Housing Board preferred W.A. No.135/97. The said appeal was disposed of on 14th April, 1997, allowing the appellant to submit a revised plan for putting up construction on plot No.3127-C without interfering with the existing water and sewerage lines at the ground floor level and directing the appellant, Tamil Nadu Housing Board, to execute a sale deed in favour of the appellant, entire consideration amount having paid. The Corporation of Chennai was directed to sanction the building plan. As per the above order, the Housing Board executed sale deed in favour of the appellant on 3rd April, 1998 in respect of plot No.3127-C. The association preferred another writ petition, W.P. No.15041/00 for direction on Corporation of Chennai, CMDA and Metrowater Supply Board not to sanction the plan. As stated above, the other writ petition, W.P. No.14922/01, almost with similar prayer, has been preferred by W.S.Jayadev and 12 others, which has been disposed of by the impugned common judgment.

4. The only question requires determination in this case is whether in view of different orders passed by this Court from time to time, including the order passed by Division bench dated 14th July, 1997 in W.A. No.135/97, and in view of execution of sale deed in favour of appellant pursuant to the Bench direction of this Court, learned single Judge should have entertained the writ petitions.

5. We have heard the learned counsel for the parties, including the counsel for the Housing Board and other State agencies.

Learned counsel for the appellant submitted that similar writ petitions preferred by contesting respondents in the year 1988 as also the writ appeals arising out of the order, both having been dismissed, the subsequent writ petitions for similar relief was not maintainable. Learned single Judge erred in allowing the writ petitions on the basis that the appellant has agreed for consent order in W.P. No.18840/92. After approaching the High Court by filing writ appeal, according to the appellant, he had agreed for consent order in writ appeal filed by Housing Board, i.e., W.A. No.135/97 and at no point of time the appellant had given go-by to the consent given by him. The respondents had no locus standi to claim any relief in the writ petitions against the consent order passed by Division Bench in W.A. No.135/97.

On the other hand, according to learned counsel for the association and other contesting respondents, the appellant cannot be allowed to take a stand contrary to what he had agreed before a Bench of this Court wherein he expressed his willingness to accept plot No.4415-A2 and Housing Board was ready to hand over the site. The writ appeal as was preferred against the same was disposed of without taking any steps to serve the contesting respondents in the said appeal, namely, one of the resident of the colony and the said appeal was disposed of on compromise between the appellant and Housing Board and is not binding on others.

6. From the impugned judgment it will be evident that learned single Judge mainly noticed the stand as was taken by the appellant in his writ petition, W.P. No.18840/92, wherein the appellant had shown willingness to accept plot No.4415-A2, Anna Nagar, Madras. Having also noticed that the writ appeal preferred against the same was disposed of on compromise, learned single Judge observed that apart from the merit in the claim of the writ petitioners, who are the contesting respondents in the present appeal and the entitlement of the Housing Board to sell the said plot to private parties and as the 5th respondent (appellant herein) had conceded before this Court to an alternative plot, held that those facts cannot be given a go-by on account of the alleged compromise between the Housing Board and the 5th respondent and allowed the writ petition.

7. It will be evident from the impugned order passed by learned single Judge that the learned single Judge failed to discuss the right of contesting respondents, i.e., the writ petitioners of the two writ petitions in question. No claim has been made as to how the contesting respondents/writ petitioners lay their claim over plot No.3127-C. Admittedly, the said plot was not allotted in favour of the association or any of its members. There is nothing on the record to suggest that the said plot No.3127-C was allotted as a playground for children of the LIG allottees/association or was shown as such in the layout plan of the Housing Board.

Learned single Judge failed to notice that the 13 members of the association out of 16, earlier moved before this Court for similar relief as sought for in the present two writ petitions in respect of same plot No.3127-C. The said writ petition, W.P. No.3284/88 was finally dismissed and the appeal preferred against the same, i.e., W.A. No.829/91 was also dismissed. In the said case, this Court had observed that there being a disputed question of fact, the remedy lies before civil court in a civil suit.

We also noticed that learned single Judge, in fact, discarded the compromise reached between the appellant and Housing Board in W.A. No.135/97 as illegal, though under the law, the said order having reached finality between the parties, it was not open for learned single Judge, that too in a writ petition under Article 226 to make such observations. So far as plot No.4415-A2, Anna Nagar, Madras, is concerned, learned single Judge failed to notice that though the appellant shown willingness to accept the said plot, but Housing Board had not accepted the same and, therefore, preferred W.A. No.135/97, since plot No.4415-A2 does not come under Residential Use Zone. Learned single Judge erred in observing that both appellant and Housing Board agreed for plot No.4415-A2 and also failed to deliberate on the question whether the said plot No.4415-A2 could be allotted to the appellant as it do not fall under the residential zone.

8. Admittedly, pursuant to a Division Bench order, sale deed has been executed in favour of the appellant in respect of plot No.3127-C on 3rd April, 1998 on receipt of total consideration amount. The said deed was not challenged by any party before any civil court of competent jurisdiction nor any declaration in respect of said sale deed was sought for. Learned single Judge failed to appreciate the said fact and had not deliberated as to what will be the effect of the judgment on the sale deed already executed on 3rd April, 1998, pursuant to Division Bench order of this Court. If the impugned judgment passed by learned single Judge is affirmed, it will amount to nullifying a sale deed in a case under Article 226 of the Constitution of India, which is not permissible.

9. For the reasons aforesaid, we set aside the common order dated 3rd Jan., 2003, passed by learned single Judge in W.P. Nos.15041/00 and 14922/02. The writ appeals are allowed. However, there shall be no order as to costs.

							        (S.J.M.J.)       (K.S.A.J.)
								        09.01.2008
Index     : Yes
Internet : Yes
GLN


To
1. The Member Secretary
    Chennai Metropolitan Development Authority
    Chennai  8.

2.  Commissioner of Corporation 
     of Chennai, Chennai - 3

3. The Chairman
    Chennai Metro Water Supply &
    Sewerage Board, Chintadripet
     Chennai  2.

4. The Chairman
    Tamil Nadu Housing Board
    Nandanam, Chennai.






				                   	                S.J.MUKHOPADHAYA, J.
							                      AND
		                                    		               K.SUGUNA, J.
									
										GLN





						       PRE-DELIVERY JUDGMENT IN
						      W.A. NOS. 1455 & 1456  OF 2003





											


								Pronounced on
								    09.01.2008

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