Madras High Court
Harvey Nagar Residents Welfare ... vs The District Collector on 13 March, 2013
Author: R.Subbiah
Bench: R.Subbiah
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 13/03/2013
CORAM
THE HONOURABLE Mr.JUSTICE R.SUBBIAH
Writ Petition (MD) No.14451 of 2010
and
Writ Petition (MD) No.1473 of 2012
and connected M.Ps.
W.P.No.14451/2010:
Harvey Nagar Residents Welfare Association,
rep.by its Secretary,
72, Harvey Nagar,
Madurai-625 016. ..Petitioner
vs.
1. The District Collector,
Madurai-1.
2. The Director of Town and Country Planning,
807, Anna Salai, Chennai.
3. The Chief Town Planning Officer,
Madurai Municipal Corporation,
Madurai.
4. The Deputy Director of Town and Country Planning,
4, Hakkim Ajmalkhan Road,
Chinna Chokkikulam,
Madurai.
5. The Commissioner,
Madurai Municipal Corporation,
Madurai.
6. The Madura Coats Pvt.Ltd.,
rep.by its Regional Director,
Human Resource, Madurai.
7. Devaki Diagnostics Pvt.Ltd.,
rep.by its Managing Director
Dr.P.S.Nagendran,
1A, Harvey Nagar,
Madurai-16.
8. The Joint Registrar of Co-operative Societies,
Madurai Region, Lady Dock College Road,
Chokkikulam, Madurai.
9. Coats Viyella Employees Co-operative
Building Society,
D.No.76/218, Theni Main Road,
(Near Union Bank of India, Arasaradi Branch,
Madurai),
P.P.Chavadi, Madurai-16.
10.A.2459, The Coats Viyella Employees
Co-operative Housing Societies Ltd.,
No.15, P.T.Rajan Main Road,
Narimedu, Madurai. ..Respondents
(R8 to R-10 impleaded as party respondents
as per the Order of Court dated 11.04.2012
in M.Ps.1, 2/2011 and 1/2012)
W.P.No.1473 of 2012:
M/s.Devaki Diagnostics Pvt.Ltd.,
rep.by its Managing Director
Dr.P.S.Nagendran,
13, Theni Main Road,
Arasaradi, Madurai. ..Petitioner
vs.
1. The Revenue Divisional Officer,
Madurai South,
Madurai.
2. The Tahsildar,
Madurai (South),
Madurai-625 020.
3. Harvey Nagar Residents Welfare Association,
rep.by its Secretary,
72, Harvey Nagar,
Madurai-625 016.
4. A.2459 Madurai Vyalla Paniyalarkal
Mattrum Pothu Sevai Cooturavu Veettu
Vasathi Variyam, represented by its
Secretary (incharge),
P.T.Rajan Road,
Madurai-625 002. ..Respondents
Prayer
Writ Petition No.14451 of 2010 is filed under Article 226 of
Constitution of India, praying to issue a Writ of Mandamus, forbearing the
respondents 1 to 5 from giving any permission to demolish the construction in
T.S.No.1300, 1308/2, 1309/2, 1310, 1311 New T.S.No. 48, 49, 52, 21 Town Survey
Ward No.5 building bearing No.2, Harvey Nagar, 1st Street, Technical School West
13th Street, Madurai-16.
Writ Petition No.1473 of 2012 is filed under Article 226 of Constitution
of India, praying to issue a Writ of Certiorari, calling for the records
relating to the impugned Proceedings dated 02.02.2012 in Ni.Moo.No.5364/ 2011/N
passed by the 1st respondent and quash the same.
!For Petitioners ... Mr.M.V.Venkataseshan (Petitioner in W.P.
14451/2010 & R3 in W.P.1473/2012)
Mr.T.V.Ramanujam, Senior Counsel for
Ms.U.Nirmala Ravi (Petitioner in W.P.
1473/2012 and R7 in W.P.14451/2010)
^For Respondents... Mr.D.Muruganandham, A.G.P., for R1 &
R2 in W.P.1473/2012 and R1 to R4 &
R8 in W.P.14451/2010
Mr.V.Bharathidasan for R4 in W.P.1473 of
2012 and R-10 in W.P.14451/2010
Mr.N.Rajaraman for R6 in W.P.14451/2010
Mr.C.Kannan for R5 in W.P.14451/2010
:COMMON ORDER
Writ Petition No.14451 of 2010 is filed for a direction, forbearing the respondents 1 to 5 from giving any permission to demolish the construction in T.S.No.1300, 1308/2, 1309/2, 1310, 1311 New T.S.No. 48, 49, 52, 21 Town Survey Ward No.5 building bearing No.2, Harvey Nagar, 1st Street, Technical School West 13th Street, Madurai-16.
Challenging the Proceedings dated 02.02.2012 in ep/K/vz;/ 5364/ 2011/vd; passed by the 1st respondent - Revenue Divisional Officer, Madurai South, Writ Petition No.1473 of 2012 is filed to quash the same.
2. Case of the petitioner in W.P.No.14451 of 2010, in brief, is as follows:
(a) According to the petitioner - Harvey Nagar Residents Welfare Association, they have formed the said Association for the welfare of their members and it was registered under Societies Registration Act. Originally, the workers of Madura Coats formed an Association called as Madura Mills Employees Co-operative Building Society. On 29.01.1958, the Government of Madras have acquired the lands in S.Nos.1300, 1308/2, 1310 and 1311 which belong to various persons for the purpose of constructing houses for members of the said Society, and thereafter, the Government of Madras assigned the lands to the Society. The plan submitted by the Society was approved by the Town Planning Officer for a total extent of acquired lands of 14 acres 82 cents, in which 1 acre 10 cents was allotted for public purpose like road, drainage, park, play ground, club etc. Thereafter, on 13.03.1973, the Society submitted a revised plan and the same was sanctioned by the 5th respondent Corporation. After getting sanction, the Madura Mills have constructed an Auditorium to an extent of 1800 sq.ft.in the earmarked place and also established a place for Volley Ball Court, Shuttle-
cock Court and Basket Ball Court and the members of the Society were allowed to utilise the above said facilities.
(b) While so, in 1992, the 6th respondent - Madura Coats Private Limited attempted to dig bore-wells in the public place and as such, the members of the Society filed a suit in O.S.No.346 of 1992 for mandatory and permanent injunction against the 6th respondent and the suit was decreed ex parte. Since the Madura Mills Employees Co-operative Building Society became defunct, the members have formed a new association in the name of Harvey Nagar Residents Welfare Association and their members were allowed to convene the meeting in the Auditorium after getting permission from the management of Madura Coats. Subsequently, the members of the petitioner Association were not allowed to utilise the place which was earmarked for public purpose by the Management of Madura Coats and the management claimed exclusive right over the public place by showing the property tax receipt which stands in the name of the Management of Madura Coats. Thereafter, they came to know that at the influence of the management of Madura Coats, the 5th respondent Corporation has changed the name of the place of club building and play grounds of Madura Mills.
(c) It is the further case of the petitioner that the 6th respondent filed a suit in O.S.No.334 of 2009 before the Additional District Munsif Court, Madurai Town against the petitioner Association for permanent injunction restraining them from interfering with their peaceful possession and enjoyment of the subject land and they have also obtained an order of interim injunction in I.A.No.273 of 2009 on 29.09.2010. Challenging the same, C.M.A.No.10 of 2010 has been filed before the Principal Sub Court, Madurai and the same is pending. The 6th respondent lodged a false complaint against the petitioner and the same is pending in C.C.No.3074 of 2009 on the file of Principal Sessions Court, Madurai.
(d) Prior to the abovesaid proceedings initiated in the year 2009 by the 6th respondent, in the year 1996, one Chinnathambi, who was working as Marker under the Sports Club, has filed I.D.O.P.No.225 of 1996 before the Labour Court, Madurai, in which one V.K.Chandrasekar examined on behalf of the 6th respondent as a management witness, had deposed that the playground does not belong to the 6th respondent Management, but belongs to the petitioner Association. After getting entries in their name in all official records, the Management of Madura Coats tried to alienate the place which was earmarked for public purpose to the 7th respondent. After knowing this fact, the petitioner Association immediately sent a letter to the Sub Registrar, Arasaradi on 20.07.2010 and requested him not to entertain any document in respect of S.Nos.1300, 1308/2, 1309/2, 1310, 1311; but on 17.08.2010, they were informed that their requisition cannot be considered. Taking advantage of this fact, the 6th respondent had executed a sale deed on 12.11.2010 in favour of the 7th respondent in respect of public place, for which the 6th respondent management has no right at all. Thereafter, the petitioner Association has approached respondents 1 to 5 and requested them to take proper action against 6th and 7th respondents. But, on 04.12.2010, respondents 6 and 7 came to the subject property with heavy machineries to demolish the building, but the same has been prevented. Immediately, the petitioner sent a representation to respondents 1 to 5 to prevent the demolition of the building situated in the public place without getting any permission from the 5th respondent. Left with no other alternative, the present writ petition has been filed before this Court.
3. This Court, by order dated 13.12.2010, granted an order of interim injunction against respondents 1 to 5.
4. The 4th respondent, namely, the Deputy Director of Town and Country Planning, Madurai filed a counter affidavit stating that an application was submitted by Madurai Mills Employees Co-operative Building society for approval of plan of their proposed site and on consideration, the plan was approved, wherein 88 plots admeasuring to an extent of 1482 cents were sought for approval. Out of which, 148.2 cents being 10% of the total area has been earmarked for the public usage. The public are utilising the same as on date as shuttle-cock court, badminton court, basket ball court and foot ball court and they have not received any application from any source for reconverting, altering or change of usage of the land which are earmarked for the public usage. As per the Rules, no permission could be granted to alienate the land earmarked for the public usage.
5. The 5th respondent - the Commissioner of Madurai Corporation filed a counter affidavit, admitting the initiation of original suit O.S.No.334 of 2009 before the Additional District Munsif Court, Madurai and the pendency of C.M.A.No.10 of 2010 before the Principal Sub Court at Madurai as well as the criminal complaint filed by the 6th respondent against the petitioner. Hence, the parties can agitate all their points before the Principal Sub Court at Madurai, wherein C.M.A.No.10 of 2010 is pending and as such, the writ petition can be dismissed. Further, it is admitted that the petitioner association used to seek permission from the 6th respondent whenever they want to conduct their meetings. If the said property really belongs to the petitioner Association, there is no necessity to seek permission from the 6th respondent for conducting meetings. Further, the petitioner has not challenged the property tax being levied in the name of the 6th respondent either by filing an appeal before the Corporation or by filing a suit before the Civil Court. When the writ petitioner came to know that the 6th respondent alleged to have encroached the place left for common use, they should have filed a suit or filed a criminal complaint before the concerned authorities; but they did not do so.
6. It is further stated that no one is permitted to encroach or swallow the public place. When the 7th respondent approached this respondent for entering their names in the property register by producing the duly registered sale deed dated 12.11.2010 executed by the 6th respondent, on considering the said document and other required records, the 5th respondent has entered the name of 7th respondent in the official records and register. According to the property register maintained by Madurai Corporation, the said place is not shown as Park or Public utility place. If the writ petitioner association has any right over the said property, they can very well file a suit and establish their right and title. According to the records maintained by the Madurai Corporation and also as per the revenue records, the Association has no fundamental right and as such, they cannot file and maintain a writ petition by questioning the right and title of another person, who is in lawful and peaceful possession and enjoyment of the said property. Apart from that, the revenue records such as patta, property receipt and electricity connection stand in the name of the 7th respondent as on date. It is well settled by the Apex Court that when a civil suit filed by a party was decided against another party in which both parties adduced evidence and documents, the writ petition cannot be filed on the same points by the aggrieved party as it amounts to res judicata. Under such circumstances, they prayed for dismissal of the writ petition.
7. Originally W.P.No.14451 of 2010 has been filed against the official respondents 1 to 5 and the Madura Coats Private Limited, who had sold the disputed land as 6th respondent and Devaki Diagnostic Private Ltd, who had purchased the disputed land from the 6th respondent as 7th respondent. It is the case of the writ petitioner that they were under the impression that the Madurai Mills Employees Co-operative Building Society, in favour of whom the land was assigned by the Government of Madras had become defunct; but subsequently they came to know that the said Society has changed its name in the year 1997 as Coats Viyella Employees Co-operative Building Society and, as such, they have taken out an application in M.P.(MD) No.2 of 2012 to implead the said Coats Viyella Employees Co-operative Building Society as the proposed respondent and the said petition was ordered.
8. The 6th respondent - Madura Coats Private Limited filed a counter affidavit inter alia stating that the petitioner association has no right, title or interest whatsoever in the property, and hence, they are not entitled to file this writ petition. The petitioner association has no connection whatsoever with the Madura Mills Employees Co-operative Building Society and as per the byelaws of the petitioner Association, any person owning the building in Harvey Nagar is a member of the petitioner association; but they have no right in the building society. The allegation that 1 acre 10 cents was allotted for public purpose like road, drainage, park, playground, club, etc. is denied. The club is not meant for public purpose. After obtaining sanction from the then Madurai Municipality, Madura Mills had constructed the club building and a sports club was formed as a welfare measure only for the employees of Madura Mills and the members of the Building Society were not allowed to use the club and other facilities. On the other hand, all the facilities were utilised by the employees of the Madura Mills and that neither the building society nor its members have anything to do with the Sports Club.
9. It is further stated that the club building and the property was assessed to property tax in the name of Madura Mills from 1973 onwards and Madura Mills Company had been paying the property tax in its name since then. The subject property belongs to Madura Mills and it is not used as a public property at any point of time and there was no park in the property at any time as per the plan. Further, the issue raised by the petitioner in this writ petition is a disputed question of fact, which cannot be decided in writ proceedings and in respect of the said issue, the 6th respondent had filed a suit in O.S.No.334 of 2009 on the file of Additional District Munsif Court, Madurai and after elaborate enquiry, an order of interim injunction was passed in I.A.No.273 of 2009 restraining the petitioner association and its members from using the sports club and its property and the said suit is still pending.
10. Madura Mills had applied for construction of compound wall around the club property in the year 1975 and it was also sanctioned by the authorities and thereafter, the Mill had constructed a compound wall and the property was in exclusive possession and enjoyment of the mills. Hence, it is incorrect to state that the members of the Association were allowed to utilise the above said facilities. When the mill had proposed to dig heavy bore well in the property, the residents around the property had filed a suit stating that they would not get sufficient water in the bore well of the houses. Hence, the proposal was dropped and that mere filing of the suit will not give any right to the petitioner association. The petitioner association had made written request to the mill to conduct their annual general body meeting in the auditorium and on payment of necessary charges, the petitioner association was permitted to use the auditorium only for the purpose of their annual meeting. This itself is a clear proof that the 6th respondent mills is in exclusive possession and control of the property and right from the construction of the club and the auditorium, the property has been in continuous possession and enjoyment of the mill and its employees.
11. The members of the petitioner association tried to trespass into the property taking advantage of the closure of the sports club and hence, the 6th respondent had filed the suit, wherein an order of interim injunction has been granted. The Secretary of the petitioner Association tried to break open the lock and forcibly enter the property in violation of the court order and hence, a criminal complaint has been lodged and a case has been registered by the police and it is pending. The title of the property cannot be decided in the labour dispute and any admission made by any employee of the mill in an industrial dispute proceedings cannot be taken into consideration for deciding the nature of the property and it has to be decided only on the basis of the documents.
12. The 6th respondent had followed the procedures laid down in the Articles of association of the Company and had sold the property to the 7th respondent for a valuable consideration and the document had also been duly registered. It appears that the authorities have recorded the said transfer in the name of the 7th respondent in their register and as such, there cannot be any injunction against the real owner of the property. The petitioner association has no locus standi to file this writ petition since no right of the petitioner has been infringed. The writ petition is a clear abuse of the process of the court and is liable to be dismissed.
13. The 7th respondent M/s.Devaki Diagnostics Pvt.Ltd., in favour of whom the 6th respondent had sold the property in question, has taken out an application M.P.(MD) No.2 of 2012 to vacate the interim order dated 13.12.2010 granted by this Court in M.P.(MD) No.2 of 2010. This respondent has also filed W.P.No.1473 of 2012 challenging the cancellation of patta issued in their favour by the Revenue Divisional Officer, Madurai. The averments stated in vacate stay petition in M.P.(MD) No.2 of 2012 and W.P.No.1473 of 2012 are identical and the said averments in brief are as follows:
To avoid confusion, the parties are hereafter referred to as arrayed in W.P.No.14451 of 2010.
14. M/s.Devaki Diagnostics Private Limited have started "Devaki Cancer Institute" in the year 2007 in Arasaradi, Madurai. There is no specialty hospital to cater to the needs of the cancer patients in South Tamil Nadu and the institution was inaugurated by the then President of India Dr.A.P.J.Abdul Kalam. The said hospital have treated nearly 10,000 cancer patients who are below poverty line and they had been awarded by the Tamil Nadu Government as "Best Hospital". While so, they wanted to expand their activities further and as such, they were on the look out for a landed property. They came to know that the adjacent landed property belonging to the Madura Coats came up for sale, and they decided to purchase the said land for expansion of their hospital. It was seen that the said landed property housed the Madurai Mills Sports Club. As early as in 1973, Madura Coats Limited had submitted a plan to the local authority for putting up a sports club and building and the plan had been duly approved. Thereafter, a sports club had come into existence. The club comprised an indoor games club, a tennis court, a basket ball court and a volley ball court. The landed property is a compounded one and was never earmarked or allotted for public purpose and it was used exclusively by the employees of Madura Coats Limited for their recreational purposes. Whenever the local people wanted to make use of the place for any event, they would approach the company management and make use of the same after getting permission from them. The property tax has been paid by the Management and they were in exclusive, absolute, open and uninterrupted possession of the said property for more than four decades.
15. After taking into consideration the said facts only, the petitioner decided to purchase the said property from the company for a valuable consideration and a sale deed executed in favour of the petitioner has been registered on 11.11.2010 on the file of Sub Registrar, Arasaradi. Thereafter, this respondent on application to the revenue authorities, obtained mutation of the revenue records, wherein the Pattadhar was shown as Secretary, Madurai Mills Employees Co-operative Building Society; but no such Society is in existence. The Society was never in possession of the said property and it never had any right or title over the said property. It appears that the company management did not apply to the authorities for changing the patta in favour of the company, but the records would show that the company had been paying the property tax. The assessee had always been shown as "Madura Coats". In the said circumstances, the revenue records were immediately corrected and changed in favour of the 7th respondent When they were taking steps for demolition of building for expanding the cancer institute, the petitioner association started to interfere with the same. Therefore, the 6th respondent company had filed O.S.No.334 of 2009 on the file of District Munsif Court, Madurai Town for asserting their rights and an order of injunction was granted against the Association. C.M.A.No.10 of 2010 filed against the interim order is pending before the Principal Sub Court, Madurai.
16. At this stage, the petitioner Association filed W.P.No.14451 of 2010 before this Court and obtained an order of injunction restraining the Madurai corporation from demolishing the building and the same is still pending. The Association filed an appeal before the Revenue Divisional Officer, Madurai South and sought cancellation of patta issued in the name of the petitioner. After conducting an enquiry in the matter, the impugned order dated 02.02.2012 was passed, cancelling the mutation of patta made in favour of the 7th respondent. Though they have a remedy of further revision before the District Revenue Authority, Madurai, they came to know that the father-in-law of an authority, who is superior in rank to the District Revenue Officer, Madurai is a resident of Harvey Nagar and associated with the petitioner Association, left with no other alternative, the 7th respondent has filed the present writ petition before this Court.
17. In W.P.No.1473 of 2012, the 10th respondent - Coats Viyella Employees and other Co-operative Housing Society (R4 in W.P.No.1473 of 2012) filed a counter affidavit inter alia stating that the said Society is registered under the Tamil Nadu Co-operative Societies Act. It was originally registered as Madurai Mill Employees Co-operative Building Society Limited, started with the employes of Madurai Mill. Subsequently, in the year 1997, the name of the Society has been changed as A.2459, Coats Viyella Employees Housing Co-operative Housing Society. The Society, having 1340 members, is one of the profit making Housing Societies in the State without any complaints.
18. As requested by the Society, the Government of Madras acquired an extent of 5.66 acres of land for the purpose of construction of houses to the Madurai Mill Employees Co-operative Building Society Ltd., under the Land Acquisition Act and the compensation was paid by this respondent Society. Subsequently, another extent of 8.76 acres of land was purchased by the Society and applied for layout approval in the name of Harvey Nagar for a total extent of land and layout was also approved by the Director of Town and Country Planning for 88 plots in OTP/13/1973 dated 03.03.1973. At the time of getting approval of the layout, the Society have provided Open Space Reservation area (OSR) land for public purpose like road, drainage, park, playground, etc. They are regularly paying the urban land tax to the revenue authorities in the name of the society for the said land and patta for the land is standing in the name of the Society. The land in dispute, i.e. the land said to have been purchased by the petitioner from the Madura Coats Ltd., is a OSR land and the public are using the playground playing various games. Hence, the Madura Coats Limited cannot claim any right over the said property and they have no right to sell the land which is earmarked as OSR land. Even though the Madura Coats Limited put up a small building for sports activities, it is only for the public purpose, by which the Mill cannot claim any right over the property.
19. Even though the patta stands in the name of the respondent Housing Society, the writ petitioner after the alleged purchase of the property filed an application for transfer of patta in their name and the Tahsildar, Madurai, without conducting any enquiry, simply transferred the patta in the name of the 7th respondent. Only when the petitioner Association filed an appeal challenging the order of transfer of patta, they came to know about the same and immediately they have filed their objection before the Revenue Divisional Officer, who, after conducting enquiry, cancelled the patta transferred in the name of the 7th respondent. Further, this respondent denied the allegations that the property was not earmarked for public purpose and the Madura Coats Limited is using the property. By merely paying property tax for the building alone will not create any right over Madura Coats Limited. In the revenue records, the patta stands in the name of Secretary, Madurai Mill Co-operative Building Society, which Society's name has been changed as A-2459, Coats Viyella Employees Co-operative Housing Society. Except the change of name, the Society is continued to be in existence. When the 7th respondent is having alternative remedy of filing an appeal before the District Revenue Officer, bypassing the said remedy, the 7th respondent has filed the present writ petition. Under such circumstances, the writ petition has to be dismissed.
20. Heard the learned counsel for all the parties and perused the materials available on record.
21. Petitioner - Harvey Nagar Residents Welfare Association is a registered Association. According to them, for the purpose of getting residential accommodation to the employees of Madurai Mill, the employees formed a Society in the name of Madurai Mill Employees Co-operative Building Society Limited under Registration No.A-2459. At the request of the said Society, the Government of Madras acquired land for the said purpose in S.Nos.1300, 1308/2, 1309/2, 1310, 1311 on 29.01.1958. Thereafter, the Government of Madras assigned the land to the said Society. The plan submitted by the Society to an extent of 14.82 acres was approved by the Town Planning Officer, Madurai Corporation as well as Assistant Town Planning Officer, Madurai Corporation, in which 1 acre 10 cents was allotted for public purpose like road, drainage, park, playground, club, etc. Mr.M.V.Venkataseshan, learned counsel for the petitioner Association invited the attention of this Court to the plan approved on 16.08.1971 and the revised plan approved on 03.03.1973 and submitted that the land measuring to an extent of 1.10 acres on the southern side of the land was earmarked as open space, out of 14.82 acres acquired for the mill and the same was allotted for public purpose, namely, children play ground, etc. There was a club house which was meant for the enjoyment of the members of the said Society. Some of the employees, who had originally constructed houses sold the same to third persons and presently some of the old employees are still residing in the area and using the open space along with their children. In the open space, Volley Ball Court, Shuttle Cock Court and Basketball Court were established. The members of the Society were allowed to utilise the said facilities.
22. In the said open space, there was an Auditorium and the members were allowed to convene the meeting in the said place after getting permission from the management of Madura Coats Limited (6th respondent). But, at the influence of the management of 6th respondent, the 5th respondent - Madurai Municipal Corporation has changed the name of the place which consists club building and playground of Madura Mills. But actually, the entire land including 1.10 acres which was meant for the open space was acquired by the Government of Madras only for the benefit of employees of the 6th respondent employees. In the said situation, they came to know that the management of 6th respondent tried to alienate the area which was earmarked for the public purpose to the 7th respondent. Thereafter, the petitioner Association had requested the Sub Registrar, Arasaradi, by a letter dated 20.07.2010 not to entertain any document in respect of the lands acquired for the purpose of construction of houses to the employees of Madura Mills, but the same was negatived. Taking advantage of this, the 6th respondent management had executed a sale deed on 12.11.2010 in favour of the 7th respondent in respect of public place and thereafter, the 7th respondent came to the subject land with heavy machineries to demolish the building situated in the public place and the same was prevented by the petitioner Association with great efforts. After purchase of the said land, the 7th respondent has also obtained mutation of revenue records. Originally the revenue records were in the name of Secretary, Madurai Mills Employees Co- operative Building Society and not in the name of the 6th respondent. A representation dated 10.07.2011 was given to the District collector by the petitioner Association and the same was forwarded to the Revenue Divisional Officer. After giving an opportunity to the 7th respondent in favour of whom patta was issued subsequent to the purchase of the property from the 6th respondent, the mutation was cancelled by the revenue Divisional Officer on 02.02.2012. In this regard, the learned counsel for the petitioner further submitted that as against the impugned order passed by the Revenue Divisional Officer, the 7th respondent is having an appellate remedy; but instead of preferring appeal, they filed W.P.N.1473 of 2012. Under such circumstances, the writ petition filed by the petitioner Association for a mandamus forbearing the official respondents 1 to 5 from giving any permission to demolish the existing building in the subject land and put up a new construction thereon by the 7th respondent has to be allowed and consequently the writ petition filed by the 7th respondent in W.P.No.1473 of 2012 to quash the impugned order of Revenue Divisional Officer dated 02.12.2012 has to be dismissed. Learned counsel has also relied on the decision reported in the case of RAMAKRISHNA NAGAR FLAT ALLOTTEES/OWNERS' CO-OPERATIVE HOUSING SOCIETY .vs. TAMIL NADU HOUSING BOARD REP.BY ITS CHAIRMAN (1997TNLJ 420).
23. By a perusal of the said judgment, it is seen that the facts of that case would show that the Housing had constructed 78 flats, of which 60 were MIG flats and 18 were LIG flats and apart from that, garages were constructed and the Housing Board had its office building measuring about 3325 sq.ft. The Housing Board while calculating, fixing, arriving and determining the price for each flat, took into consideration not only built up area but also the entire open space of ground wherein there was no construction or buildings and also the compound wall which was put up at the request of the society but cost recovered from allottees with the result that the entire area encompassed and surrounded by the compound walls belonged to the allottees owners of these 78 flats. Initially the Board had retained possession of the office building measuring about 3325 sq.ft.as caretakers office. Most of the allottees have paid the entire amount and have obtained sale deeds also. The allottees formed themselves into a Society and got it registered under the Madras Co-operative Societies Act with the idea of maintaining and managing the flats and the welfare of the allottees. After the formation of the said Society, the appellant Society were insisting on the handing over the office building also, retained by the Housing Board as their caretakers office, so that they could have full, complete and absolute control of the entire area for the proper and effective management and control of the entire area. In this background, a Division Bench of this Court held that the Housing Board having parted with the possession in respect of the entire area and having determined and calculated the value of the entire area and collected the amount from the respective allottees on that basis, has no right, interest or title in the said area to allot to anyone and dispossess the Society and its members and such an act is highly illegal and without jurisdiction.
24. By relying upon the said judgment, the learned counsel for the petitioner submitted that even in the present case, after acquisition of land by the Government of Madras for the members of Madura Mills Co-operative Society, the houses were constructed and 1.10 acre open space was allotted for public purpose. Under such circumstances, the effective control and administration is only with the Society and the 6th respondent management has no right over the open space and as such, they are not entitled to alienate the same to any other person.
25. Combating the said submissions, learned senior counsel Mr.T.V.Ramanujam appearing for the 7th respondent (Devaki Diagnostics Pvt.Ltd.,) at the outset submitted that the writ petition filed by the petitioner Association itself is not maintainable since there is a disputed question of fact. In order to substantiate the said contention, the learned senior counsel invited the attention of this Court to the 4(1) Notification issued by the Government of Madras dated 29.01.1958 and submitted that under 4(1) Notification, the total area i.e.4 acre 90 cents was acquired by the then Government of Madras for the benefit of Madura Mills Employees Co-operative Building Society. On 29.03.1961, an agreement between the Government of Tamil Nadu and Madura Mills Employees Co-operative Buildings Society Limited has been entered into regarding acquisition of lands to an extent of 3 acre 66 cents under urgency provision and 2 acre 20 cents under ordinary provision. If these measurements mentioned in the 4(1) notification under urgency and ordinary provision added together, then it comes to 5 acres 66 cents and 620 sq.ft. The entire area is acquired for the benefit of Madura Mills Employees Co-operative Building Society. Originally as per the layout plan of the year 1967, 88 plots are shown and the extent is mentioned as 14.82 acres; though an area has been marked as 'Children Play Space', 'Park' and 'Reading room', no extent is mentioned. According to the 6th respondent, the balance land belonged to the management. When the petitioner association disputing this fact, then the question as to how the remaining acres of land came into existence has to be decided only by oral and documentary evidence in a civil suit and not in the present writ petition.
26. It is the further submission of the learned senior counsel that on going through the materials, it could be seen that the original lay out was prepared in the year 1967, in which, no open space was earmarked. Only in the revised plan prepared in the year 1973, the open space was earmarked, in which Madura Mills has constructed an auditorium in the open space and also basket ball court in the year 1973 after getting sanction. Thus, the learned senior counsel submitted that all along from the date of construction of auditorium, the members of the petitioner association is using the same and other facilities only with the permission of the management of the 6th respondent. Further, a perusal of the materials available on record shows that the property tax was paid only by the management all along from the date of construction. If it is a public property as claimed by the petitioner Association, no permission is necessary from the 6th respondent; but even according to the petitioner association, they are using the auditorium and other properties only with the permission of the 6th respondent management. Further, by inviting the attention of this Court to the civil suit filed by the 6th respondent in O.S.No.334 of 2009 filed against the petitioner Association, in which the Additional District Munsif Court, Madurai while dealing with the injunction application has observed that the members of the association have acquired title only to the independent plots and not to any undivided share in any area left for common purposes, the learned senior counsel submitted that series of question of facts are involved and when there is a disputed question of fact, the writ petition petition filed by the petitioner Association is not maintainable. In support of this contention, the learned senior counsel has relied upon judgments of this court reported in J.K.TOWERS FLAT OWNERS ASSOCIATION .vs. COMMISSIONER AND SECRETARY TO THE GOVERNMENT OF TAMIL NADU, HOUSING AND URBAN DEVELOPMENT DEPARTMENT AND OTHERS (2001(3) CTC 757) and VISHWAS FOOTWEAR COMPANY LTD., .vs. THE DISTRICT COLLECTOR, KANCHEEPURAM AND OTHERS (2011(5) CTC 94).
27. It is the further submission of the learned senior counsel for the 7th respondent that in the year 1967, when the original plan was approved, Tamil Nadu District Municipalities Act, 1920 was in vogue, which does not speak about any OSR area and 10% of area for common purpose. The Tamil Nadu Town and Country Planning Act 1971 and Madurai City Municipal Corporation Act 1971 came into force only in the year 1971-72. Further, as pointed by the learned senior counsel, no material was placed before this Court to show only the Madura Mills Employees Co-operative Building Society was renamed in 1997 as Coats Vyalla Employees Co-operative Building Society. Further when the title is in dispute, the Revenue Divisional Officer ought to have directed the parties to approach the Civil Court and he had no authority to pass the impugned order and under such circumstances, the impugned order is liable to be quashed.
28. Learned counsel Mr.Bharathidasan appearing for the 10th respondent - Coats Vyalla Employees Co-operative Housing Societies Limited submitted that actually the Society had purchased 8.76 acres apart from the land acquired to the extent of 5.66 acres by the Government of Madras. In the 1973 revised approved plan, a portion of the land on the southern side was earmarked for public purpose. Once the land was earmarked for the public purpose, it should be maintained as OSR and the Madura Coats is paying tax only for the building and not for the land. By inviting the attention of this Court to the suit filed by the 6th respondent, the learned counsel submitted that the said suit was filed for bare injunction only. If the claim of 6th respondent Madura Coats is true that the property belonged to them, they ought to have filed a suit for declaration. Filing of the suit for bare injunction based on mere possession of the property itself would show that they are not the owner of the property and only the Association is the owner of the property. Learned counsel relied upon a judgment reported in K.RAJAMMAL .vs. ALAMUNAGAR RESIDENTS' WELFARE ASSOCIATION (2011(1) CTC 257) in support of his contention that the OSR earmarked could not be allowed to any other purpose.
29. For this, it is the submission of the learned senior counsel appearing for the 7th respondent that absolutely no record was produced to show that the said property was dedicated to public purpose. Moreover, there is no documentary proof to show that only the Madura Coats Employees Co-operative Building Society had purchased 8.76 acres apart from the land of 5.66 acres acquired by the Government of Madras. Therefore, definitely, there is a disputed question of fact and the same cannot be decided in the writ proceedings.
30. Learned senior counsel for the 7th respondent has brought to the knowledge of this Court to the impugned order passed by the Revenue Divisional Officer wherein it has been observed that had the disputed land belonged to the petitioner association, there is no need for them to seek permission from the 6th respondent to use the auditorium. That apart, the Revenue Divisional Officer has observed that only the 6th respondent was managing the suit property and paying the property tax. After having observed so, contrary to his own finding, the Revenue Divisional Officer has cancelled the mutation of patta issued in favour of the 7th respondent.
31. Considering the entire gamut of submissions, it could be easily understood that series disputed questions of facts are involved in this matter. In these circumstances, the only issue that has to be decided is whether the writ petition filed by the Association is maintainable or not, because this court cannot give a finding in the writ petitions as to whether the property belongs to the management or employees union or whether there was a open space reservation land, etc. These questions have to be decided only on oral or documentary evidence. Moreover, already a civil suit was pending in this regard. Even according to the 5th respondent, the 6th respondent was paying the property tax and electricity charges on their name for several years. After the purchase of the property, the name of the 7th respondent has been entered in the official records. According to the records maintained by the authorities, the disputed land is neither in the name of petitioner Association nor the 10th respondent and when that being so, they have to file only a civil suit. Therefore, I am of the opinion that the submissions and counter submissions would show that definitely the issue consists of series question of fact, for which this court cannot give an answer because this Court is not conducting a rowing enquiry or trial. Therefore, I am of the opinion that the writ petition filed by the petitioner Association itself is not maintainable that too after lapse of several years.
32. In this regard, it would be appropriate to refer some decisions relied on by the 7th respondent. In 2001(3) CTC 757 (supra), this Court has held that the issue with regard to right could be decided only on adducing evidence and court cannot consider disputed questions of fact and also decide rights of parties governed by agreement in writ jurisdiction. In 2011(5) CTC 94 (supra), a Division Bench of this Court has held that if there is a dispute regarding title between the parties, this Court normally will not entertain the writ petition and adjudicate the disputed questions. So far as the present case is concerned, even according to the petitioner Association, they are using the auditorium and other places only with the permission of management of the 6th respondent. If really the disputed land belongs to the petitioner Association, there is no need for them to get permission from the 6th respondent management. Under such circumstances, they ought to have filed a civil suit at the relevant point of time itself seeking declaration of their right. Therefore, I am of the firm view that the writ petition by the petitioner Association is not maintainable on the ground of not only laches but also there are series disputed questions of fact. When there are disputed questions of fact, the Revenue Divisional Officer ought to have directed the parties to approach the civil court and instead of doing so, he had cancelled the patta, which, in my view, is not proper and correct. Therefore, the said order is liable to be quashed.
For the reasons stated above, W.P.No.14451 of 2010 is dismissed. No costs.
W.P.No.1473 of 2012 is allowed and the impugned order passed by the Revenue Divisional Officer, Madurai, is set aside. No costs. Connected miscellaneous petitions are closed.
gl To
1. The District Collector, Madurai-1.
2. The Director of Town and Country Planning, 807, Anna Salai, Chennai.
3. The Chief Town Planning Officer, Madurai Municipal Corporation, Madurai.
4. The Deputy Director of Town and Country Planning, 4, Hakkim Ajmalkhan Road, Chinna Chokkikulam, Madurai.
5. The Commissioner, Madurai Municipal Corporation, Madurai.
6. The Revenue Divisional Officer, Madurai South, Madurai.
7. The Tahsildar, Madurai (South), Madurai-625 020.
8. The Joint Registrar of Co-operative Societies, Madurai Region, Lady Dock College Road, Chokkikulam, Madurai.