Madras High Court
Farm Grove Srinivasa Nagar Owners And vs The State Of Tamilnadu on 7 December, 2017
Author: S.M.Subramaniam
Bench: S.M.Subramaniam
In the High Court of Judicature at Madras Dated : 07.12.2017 Coram : The Honourable Mr.Justice S.M.SUBRAMANIAM W.P.No.17093 of 2016 and W.P.M.P.Nos.16608 of 2017 and 17690, 14568, 18057 & 18058 of 2016 Farm Grove Srinivasa Nagar Owners and Residents Welfare Association, Represented herein by its Secretary Mr.V.S.Ramakrishnan having Office at Plot No.188-189, Farm Grove Srinivasa Nagar, Kazhipathur Village, Kancheepuram-603 103. ...Petitioner Vs 1.The State of Tamilnadu Rep by its Secretary to Government, Department of Rural Department, Secretariat, Fort St. George, Chennai-600 009. 2.The District Collector, Collector's Office, Kancheepuram. 3.The Thasildhar, Thiruporur Taluk, Thiruporur. 4.The Director of Town and Country Planning, Directorate of Town and Country Planning, 807, Anna Salai, Chennai-600 002. 5.The President, Padur Panchayat Union, Padur-603 103. 6.The President, Muttukadu Panchayat Union, Old Mahabalipuram Road, Egattur, Chennai-603 103. 7.Sri.Kshipra Ganapathy Thiru Koil Trust, Rep by its Managing Trustee, Mr.T.Srinivasan, S/o.Thangaraj Nadar, No.41, A5, First Floor, First Main Road, Gandhi Nagar, Adayar, Chennai-600 020. 8.Balachandra Builders (P) Ltd Having Office at NO.41, A5, First Floor, First Main Road, Gandhi Nagar, Adayar, Chennai 600 020. 9.Tranquil Garden Plot Owners Association, Rep by its President, H-103/1. Suksagar Apts, III Seaward Road, Valmiki Nagar, Thiruvanmiyur, Chennai 600 041. [R8 and R9 were Impleaded orders dated 11.07.2017 & 07.12.2017 in W.M.P.Nos.18057 & 16608/2017 in W.P.No.17093/2016] ...Respondents Petition filed under Article 226 of The Constitution of India praying to issue a Writ of Certiorarified Mandamus, calling for the file and records of the 3rd respondent relating to and culminating into the order dated 22.04.2016 passed in proceedings Na.Ca.No.1186/2016/A2 and quash the same and consequently direct the 8th respondent to cancel the Gift Deeds registered as Document Nos.8187 and 8188 both dated 08.08.2007 and also Document No.3849/2008 dated 28.05.2008, so as to restore the roads with Petitioner Association in terms of Clause 7 of the Development Agreement. [Prayer amended as per order 07.12.2017 in WMP.18058/2016 in WP.No.17093/2016] For Petitioner : Mr.G.Sundaram For RR1 to 4 : Mr.R.Vijayakumar Additional Government Pleader For R5 : Mr.Digvijayapandian For R6 : M/s.M.E.Rani Selvam For R7 : Mr.S.Udayakumar For R9 : M/s.V.J.Latha ORDER
The relief sought for in this writ petition is to call for the records in pursuant to the order passed by the 3rd respondent in proceedings dated 22.04.2016, quash the same. The prayer originally sought for in this writ petition is sought to be amended in respect of the cancellation of Gift Deeds registered as document Nos.8187 and 8188, dated 08.08.2007 and also Document No.3849 of 2008 dated 28.05.2008, so as to restore the roads of the Petitioner Association in terms of Clause 7 of the Development Agreement.
2. The members of the Petitioner's Association are the owners of the residential plots in Farm Grove Srinivasa Nagar and they have purchased the housing plots for consideration from the promoter namely, Balachandra Builders Private Limited. The grievance of the writ petitioner is that as per the Development Agreement, the promoter has made a promise that the ownership of the roads will be vested on the purchasers and they can utilise the road only for their private purposes. Relying on the said Development Agreement, the writ petitioners have contended that the Gift Deed executed by the builder is contrary to the Development Agreement and therefore, the same is to be quashed.
3. Further, they have raised a concern about the security of the residents of the locality and in the event of converting the said road as a public road the security of the locality will be in stake, now that they are maintaining a gate in front of their property and adequate security personnel are provided. Thus, in the event of removing all the private gates and security personnel, the security of the residents on that locality will be affected. Further, the writ petitioners having provided a clause in the Development Agreement, the promoter Balachandra Builders have committed a mistake in executing a Gift Deed in favour of the Village Panchayat Union. Thus, the gift deeds are contrary to the assurance given to the bonafide purchasers and on that ground, the Gift Deeds are to be quashed.
4. The learned counsel appearing on behalf of the respondents opposed the contention by stating that the Gift Deed was executed in the year 2007 itself, and the entire portion of the road was gifted in favour of the village panchayat and therefore, it becomes a public road. This apart, the Gift Deed was executed in accordance with the development rules and for the purpose of obtaining approval of the layout, the Gift Deed was executed by the promoter. Thus, there was no irregularity or illegality, in executing the Gift Deed in favour of the village panchayat. At the time of formulating a layout, it is mandatory under the rules, to execute a Gift Deed in respect of the roads provided within the layout. Such being the mandatory provisions provided, the promoter has executed the Gift Deed in accordance with the provisions of law and therefore the same cannot be quashed.
5. The learned counsel appearing for the proposed respondents contended that they are also residing behind the writ petitioners Farm Grove Srinivasa Nagar and their rights are also affected on account of the restriction imposed by the members of the Petitioner's Association. The proposed respondents contended that they have formed a separate layout and are having individual residential plots. They have got an access only through the public road which was already gifted in favour of the village panchayat and the road passes through the writ petitioner's Farm Grove Srinivasa Nagar.
6. Under these circumstances, if any restriction is insisted in respect of the public road, which was already gifted in favour of the Village Panchayat, the easementary rights of the proposed respondents will get affected. In other words, the proposed respondents are of the view that their right to access will be prevented.
7. The learned Additional Government Pleader appearing on behalf of the State contended that the writ petitioners have no right to question the Gift Deeds, which were already executed in the year 2007, when the layout was approved by the competent authority on condition that the public road should be gifted in favour of the village panchayat, and such a Gift Deed was executed in the year 2007 itself. Now the writ petitioner cannot claim that the particular portion of the road should be treated as a private road.
8. This apart, the learned Additional Government Pleader is of the opinion that if there is any dispute in respect of the public tranquility, then, it is left open to the respective parties to approach the appropriate authorities under Section 133 of the Code of Criminal Procedure. At the out set, the Additional Government Pleader contended that the order of the Tahsildar is a reasoned order and the order was passed after hearing all the stakeholders, who are residing in that locality and considering the documents available on record. Thus, the writ petition is to be rejected.
9. Considering the arguments advanced by the respective learned counsel appearing for the respective parties, this court is of the view that the order passed by the Tahsildar is only in respect of the Gift Deed executed in favour of the village panchayat and the rights of the petitioner for putting any restriction or gate or otherwise in the public road, which was already gifted. On a perusal of the order, it is clear that the Gift Deed, at no point of time was disputed by any of the parties. The Gift Deed was executed by Balachandra Builder at the time of obtaining approval for layouts. Once the execution of the Gift Deed to the local body for obtaining the approval of layout is mandatory then the builder or the bonafide purchasers cannot claim that the road as a private property. The Gift Deed was executed in accordance with law and the property was handed over to the village panchayat. When the gifted property was handed over to the possession of the village panchayat then no individual person can have any private right and such a gifted property in favour of the Local body, Government/Corporation has to be certainly treated as a public property, so that all the citizen will have a free access to the road.
10. This Court is of the opinion that the claim of the writ petitioner that the builder has given an assurance under the Development Agreement that the road can be used privately by the purchasers is not supported by any legal principles. This apart, if at all, any grievance exist for the members of the Petitioner's Association, it is left open to them to redress their grievances against the promoter in the manner known to law. If any false promises are provided to the members of the writ Petitioner's Association by the promoter, it is for them to redress their grievances against the promoter in accordance with law. However, the fact remains that Gift Deed is unchallenged as of today and such a Gift Deed cannot be challenged in this writ petition under the Article 226 of the Constitution of India.
11. Gift Deed is an instrument registered under the provisions of the Registration Act and the writ Court cannot entertain any such relief for quashing of the Gift Deed which was registered in the year 2007. It is a matter of civil dispute in respect of the title or otherwise, between the respective parties and this Court cannot entertain any such ground as set out in this writ petition in respect of quashing the Gift Deeds, which were executed long back. This apart, the writ petitioner, has not challenged the Gift Deed for about ten years. Now, by way of an amendment in this writ petition, they are seeking to quash the Gift Deeds. This Court is not inclined to entertain any such claim for quashing of the gift deeds, which were executed in the year 2007 and, if any civil suit is pending between the parties in this regard, it is left open to the respective parties to approach the appropriate civil court for redressing their grievances.
12. Under these circumstances, this Court is of the opinion that there is no infirmity in the order passed by the Tahsildar in respect of the decision taken with regard to the rights of the parties and the road being a public road, which was declared long back in the year 2007, the writ petitioners cannot have any right over the public property either to put up any private gate or otherwise. The public road to be kept for the usage of public in general and any restriction in the public property will affect the public tranquility and the parties, who are doing or committing any such act, are liable for prosecution under law. Thus, the petitioner cannot keep any private gate or otherwise in the public road and the official respondents are bound to see that the public roads are kept free for the usage of the general public and no private person can encroach upon the public road at any point of time. Further this Court would make it very clear that the authorities competent should have a constant vigilance in respect of public property and encroachments are to be removed without any further delay.
13. In this view of the matter, no further adjudication needs to be undertaken in respect of the grounds raised in this writ petition and in respect of the title of the property or otherwise, it is left open to the parties to redress their grievances in the manner known to law.
14. Official respondents 1 to 3 are directed to remove all the private barricades etc., forthwith from the public road and make available the public road free for access to the general public.
15. With the observations, the writ petition stands dismissed. No costs. Consequently, the connected miscellaneous petitions are also closed.
07.12.2017 sji/sk Speaking (or) Non Speaking : Yes (or) No Index : Yes (or) No Internet Yes (or) No To
1.The Secretary to Government, Department of Rural Department, Secretariat, Fort St. George, Chennai-600 009.
2.The District Collector, Collector's Office, Kancheepuram.
3.The Thasildhar, Thiruporur Taluk, Thiruporur.
4.The Director of Town and Country Planning, Directorate of Town and Country Planning, 807, Anna Salai, Chennai-600 002.
5.The President, Padur Panchayat Union, Padur-603 103.
6.The President, Muttukadu Panchayat Union, Old Mahabalipuram Road, Egattur, Chennai-603 103.
S.M.SUBRAMANIAM,J.
sji/sk W.P.No.17093 of 2016 Dated : 07.12.2017