Madras High Court
The President vs Nirmala Nagar on 27 February, 2008
Author: K.K.Sasidharan
Bench: K.K.Sasidharan
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 27/02/2008 CORAM THE HONOURABLE MR.JUSTICE K.K.SASIDHARAN S.A.No.645 of 2003 and C.M.P.No.6105 of 2003 The President, Thanjavur Diocese Society, Joseph Lionel, S/o.Stephen, Bishop House, having office at Trichy Road Thanjavur Town and Munsif ... Appellant Vs. Nirmala Nagar, Thanjavur by its Representatives 1.Subramanian 2.G.Balasubramanian 3.P.Rajendran 4.S.Manian 5.S.Thiagarajan ... Respondents PRAYER Second Appeal filed under Section 100 of the Code of Civil Procedure against the judgment and decree in A.S.No.94 of 2002 on the file of the Principal District Judge, Thanjavur dated 10.01.2003 confirming the judgment and decree in O.S.No.85 of 2000 on the file of the District Munsif, Thanjavur dated 28.06.2002. !For Appellant ... Mr.S.V.Jayaraman, Senior Counsel For Mr.S.Meenakshi Sundaram ^For Respondents ... Mr.V.K.Vijaya Raghavan :JUDGMENT
The appellant calls in question the legality and correctness of the judgment and decree dated 10.01.2003 on the file of Principal District Judge, Thanjavur in A.S.No.94 of 2002 confirming the judgment and decree dated 28.06.2002 in O.S.No.85 of 2000 on the file of District Munsif, Thanjavur.
2. The respondents preferred a suit in O.S.No.69 of 1993 before the Subordinate Court, Thanjavur against the appellant for a judgment and decree of permanent injunction restraining the appellant and his men from in any manner interfering with the peaceful common possession and common enjoyment of the schedule property by the respondents without doing any construction or fencing in the suit property and for other incidental reliefs.
3. In the plaint in O.S.No.69 of 1993, it was the case of the respondents that the appellant owned an extent of 19 acres and 15 cents of property in No.112, Nanjikottai Vattam in R.S.No.40 and the appellant prepared a lay out wherein they have laid 30 feet roads and 40 feet roads and cross roads and had also reserved property for community purpose like play ground, park and for other common purposes and sold individual plots to different owners and the lay out is known as Nirmala Nagar. The respondents are the purchasers of the respective property and they had constructed residential houses long back and are stated to be residing in the respective houses in Nirmala Nagar. The respondents have also produced a copy of the lay out showing different plots and the suit was instituted in representative capacity for and on behalf of all the residents of Nirmala Nagar.
4. In the plaint in O.S.No.69 of 1993, the respondents further contended that in the lay out, plot-A,B and C were earmarked for common purpose for the inmates of Nirmala Nagar for park, for shops and for play ground. Out of the three earmarked plots, plot-A, having an extent of 8,057 sq.ft., had already been made use of by the appellant by constructing a Church and the remaining two plots, namely Plot-B and C, having an extent of 26,400 sq.ft. and 30,710 sq.ft., continued to be the reserved area for community use. In the first item of suit property, there is a Mandapam and common well, which are used by the residents and other people in the locality including the respondents for common purpose and for taking drinking water. In the portion marked as 'C', there is a Municipal bore well and hand pipe erected by the Thanjavur Municipality and the said property has also been used by the respondents for their community purpose and the Municipality had also a proposal to put summer storage tank for storing drinking water for the respondents and other inmates of Nirmala Nagar. The first item marked as Plot-B has also been used as a play ground by the children. It is the further case of the respondents that the appellant tried to put up a fence in respect of the reserved place with a view to convert the same as private property and to sell the same to third parties which made them to file the suit for injunction.
5. The suit was resisted by the appellant by filing written statement, wherein it was contended that the suit property happens to be reserved for the use of the Diocese and never intended to be included in the lay out. It was further stated that the intention of the true owner has already been put into action, which is evident by the construction of a Church in plot-A. The appellant also denied the existence of common well and the usage of the property by the respondents and others. The appellant further contended that they have also taken steps to remove the Municipal bore well and hand pipe erected in the second item of suit property. The appellant further contended in the written statement that the lay out has not been submitted for approval to any authority and as such, the same has not been approved by the Director of Town Planning and accordingly, the appellant prayed for dismissal of the suit, as according to the appellant, the reserved property was earmarked only for the future use of the appellant.
6. The trial Court, based on the pleadings of the parties, framed four issues and during the course of trial, P.Ws.1 to 3 were examined on the side of the respondents and Exs.A.1 to A.29 were marked to prove their case. On the side of the appellant, D.W.1, the Secretary of the appellant Society was examined and Exs.B.1 to B.14 were marked. The report filed by the Advocate Commissioner along with the sketch were also marked by consent as Exs.C.1 to C.4.
7. The suit in O.S.No.69 of 1993 was later transferred to the District Munsif Court, Thanjavur from the Sub Court, Thanjavur as per proceedings of the Principal District Judge, Thanjavur dated 10.03.1997 and on transfer, the suit was renumbered as O.S.No.85 of 2000. The trial Court considered the respective contention of the parties and granted a decree of injunction as prayed for. The trial Court found that major portion of the house plots were sold during 1960 itself and in the lay out prepared by the appellant, there were provision for open space as well as inner roads to connect the main road and the lay out is commonly known as Nirmala Nagar. Altogether, there were 170 residential plots and in most of the residential plots, residential houses have been constructed and people are residing in those houses. The trial Court found that on 25.04.1989 about four years prior to the institution of the suit, the Thanjavur Municipal Council passed a resolution on its own accord to start a vegetable market in the first item of the suit property as per Ex.A.26. In Ex.A.26 though the survey number has not been mentioned, the name 'Nirmala Nagar' finds place as the place for the proposed vegetable market. Ex.A.27 dated 22.03.1988 and Ex.A.28 dated 25.04.1989 were also relied on by the trial Court to show that the Thanjavur Municipality undertook certain development activities in the lay out, by name Nirmala Nagar. It was also on record that the Thanjavur Municipality erected a bore well in the year 1992 and it was only during the pendency of the present suit filed by the respondents that the appellant filed a suit in O.S.No.636 of 1994 against Municipality for removal of the bore well and hand pump from the suit property. The trial Court also found that though the appellant obtained an exparte decree against the Municipality as early as 19.02.1996, the appellant did not take any steps to execute the decree. The trial Court also found that there was a peace meeting on 13.01.2000 as per Ex.A.29, as there were differences between the appellant and the respondents giving rise to law and order problem. It was also found that the tax receipts in Exs.B.3, B.4 and B.12 to B.14, all came into existence long after the suit and after the peace meeting. In the report of the Commissioner marked as Exs.C.1 and C.2 series, it was indicated that the property was used as play ground and as the place for convening social meetings. The Commissioner also found that there was a flag post in item No.1 of the suit property and a badminton court and a bore well with hand pump in item No.2 of the suit property. The appellant did not file any objection to the Commission Report and sketch marked as Exs.C.1 and C.2 series. However, subsequently, the appellant filed an application for appointment of another Commissioner and the said Commissioner submitted his report in Exs.C.3 and C.4 and in the said report, it was stated that shrubs were grown up in the suit property, but however, the bore well and the hand pump installed by the Thanjavur Municipality was found in the property. The second visit of the Commissioner was in the year 2002 after nine years from the earlier visit of the Commissioner in 1993 and the trial Court found that during the long interval, there was tension prevailing in the area and to maintain peace, Ex.A.29 resolution was passed in the peace meeting and according to the trial Court, the fact that the property has not been used as a play ground could not be interpreted to mean that the suit property was not used for community purpose at all.
8. The trial Court considered the case pleaded by the parties and ultimately found that the respondents have made out a case for injunction and accordingly, decreed the suit as per judgment and decree dated 28.06.2002. The judgment and decree of the trial Court was taken up in appeal by the appellant before the Principal District Court and the appellate Court framed necessary point for determination and considered the entire issue independently and confirmed the judgment and decree of the trial Court as per judgment and decree dated 10.01.2003 in A.S.No.94 of 2002 and aggrieved by the said judgment and decree, the appellant has filed the present second appeal.
9. In the above factual matrix, I have heard Thiru.S.V.Jayaraman, learned Senior Counsel appearing for the appellant and Thiru.V.K.Vijayaraghavan, learned counsel appearing for the respondents.
10. The learned Senior Counsel appearing for the appellant contended that Town Planning Act and Rules were not in force during the time of preparation of the lay out in Ex.A.16 and as such, there was no statutory obligation on the part of the appellant to earmark a fixed percentage of the total area of lay out for construction of park, play ground, community use, etc., and therefore, it is the contention of the learned Senior Counsel that the reserved area could mean only reservation made for the future use of the appellant.
11. Per contra, it is the contention of the learned counsel for the respondents that considering the larger number of plots sold by the appellant and the total area of the lay out, even if there was no statutory requirement at the time of preparation of the lay out and disposal of the individual plots, the appellant was obliged to earmark open space for community purpose, like provision of park, play ground, etc., and, therefore, the word 'reserved' could only mean for community purpose and if it is meant for the future use of the appellant, they could have very well indicated the same in the lay out. The learned counsel for the respondents further contended that the issue has to be determined by taking all other attending circumstances, like the continuous use of the reserved area by the respondents for their community purpose, the steps taken by the Thanjavur Municipality to start a vegetable market in the reserved space, erection of bore well and installation of hand pump in the property as well as the admission of D.W.1 with regard to the common use of the area by the general public.
12. The main point which arises for determination in the present appeal relates to the interpretation of the term 'reserved' as shown in plot A, B and C in the lay out.
13. It is not in dispute that the portion marked as 'A,B and C' in the lay out plan were shown as reserved area. The plot marked as A,B and C comprises an area of 8,057, 26,400 and 30,710 sq.ft respectively and the said lay out as per Ex.A.16 has also been marked on the side of the appellant as Ex.B.2. In Ex.B.2, certain indications are given in the bottom of the plan which is not found in Ex.A.16 and the indication as given in Ex.B.2 appears to be made during the time of production of the plan before the trial Court which is also borne out from the colour used as well as the writing and, therefore, the indication as found in the bottom of the lay out plan appears to have been made only to highlight the reservation before the Court below. The total area of the lay out is 19 acres 15 cents which would come to 8,34,174 sq.ft. The area reserved as A, B and C would come to 65,167 sq.ft. which would be about 8% of the total area of the lay out. In the plot marked as A, the appellant had already constructed a Church and, therefore, the reserved area of 8,057 sq.ft. is not available at present and as such, the remaining reserved area would come to 57,110 sq.ft. which would be about 7% of the total area of the lay out.
14. The contention of the learned Senior Counsel for the appellant with regard to the absence of the statutory requirement to earmark a fixed percentage of the area for community purpose appears to be well founded, as the Tamil Nadu Town and Country Planning Act 1971 came into force only in 1972. However, the plots in question were all sold way back in 1960 by the appellant. However, it cannot be contended that in the absence of statutory prescription, there is no requirement on the part of the developer to earmark a fixed percentage of the total area of the lay out for community purpose. Even before the introduction of the Town and Country Planning Act, lay outs used to be prepared with open space and various inner roads and the Town and Country Planning Act imposed statutory prescription for compulsory reservation of such open space. In the present case, as many as 170 residential plots were sold by the appellant. The appellant had also laid roads with 30 feet and 40 feet besides cross roads in the lay out so as to have access to all the plot owners from the main road. The contention of the learned counsel for the respondents that it was only after seeing the lay out which also contained the open space and reserved area meant for community purpose that the purchasers, like the respondents got assignment of the plots cannot be brushed aside. As per Buildings Rules, which had come into force subsequently in the municipal area, 10% of the total area of the lay out has to be earmarked as open space. The total area earmarked by the appellant as per A, B and C would come to 8% of the total area of the lay out and, therefore, the open space earmarked by the appellant as reserved appears to be only for community purpose. In the area shown as plot A, the appellant had already constructed a Church. The Church is for the benefit of the general public and as such, it cannot be said that by constructing the Church in the reserved area, the appellant had proved that A, B and C were earmarked only for the future use of the appellant.
15. The appellant being a responsible society managed by the Diocese, while preparing the lay out for the purpose of sale to the general public, thought it fit to earmark certain portion for community use which appears to have prompted the purchasers, like the respondents to take assignment of the individual plots. As per the report and sketch filed by the Advocate Commissioner in Exs.C.1 and C.2, the property was found to be used as a play ground by the children and the Commissioner also reported that the suit property has been used for various social purposes.
16. During the examination of D.W.1, he admitted that the respondents had no other place to use as play ground or for other social purposes. D.W.1 further admitted that the reserved portion is meant not only for the respondents but also for all general public. The said admission of D.W.1 is extracted below:
"jq;ir thH; kf;fSf;fhf vy;ByhUf;Fk; bghJthf me;j nlj;ij ehA;fs; xJf;fp itj;Js;Bshk;."
17. The learned Senior Counsel for the appellant also contended that the appellant did not hand over the reserved area to the local body and as such, the respondents are not entitled to claim the reserved area as a matter of right. But in the present case, the suit is not for declaration, but only for injunction restraining the appellant from interfering with the common possession and common enjoyment of the property by the plot owners. The respondents are not claiming ownership right, title or adverse possession in respect of the property. They are only claiming use of the property for community purpose and it is their case that by the course of conduct and the long and continuous usage of the property for their common purpose coupled with the fact that the property is marked in the lay out as reserved, they have got a right to use the property for their community purpose. By the course of conduct, it is evident that the reserved area was intended only for the benefit of the plot owners. In fact, construction of Church, temple, Mosque, etc., are all for the use of the community as a whole. The construction of the Church in one of the reserved areas is also a pointer to show that the reserved plots were meant only for community purposes.
18. The requirements as contained in various statutes with regard to provision of open space and other basis necessities for the community are all made in the interest and welfare of the community at large taking the spirit of Article 21 of the Constitution of India.
19. It is not in dispute that after the introduction of the Tamil Nadu Town and Country Planning Act 1971 for approval of a lay out, like Ex.A.16, necessarily 10% of the total area of the lay out has to be earmarked as open space. The appellant admittedly earmarked 8% of the total area of the lay out and the said open area, which were found to be used by the respondents, continued to be used by them even after the introduction of the Town and Country Planning Act and as such, the said reserved open space cannot be made use of by the appellant for any other purpose, even though the same has not been dedicated in favour of the local body.
20. The Apex Court in the case of Gobind Pershad v. New Delhi Municipal Committee reported in 1993(4) SCC 69 considered a similar case relating to continuous use of a Verandah as public street and held that by such continuous use, the holder of Verandah surrendered his rights in the property and approved the judgment of the Division Bench of Delhi High Court and held thus:
"9. The trial Court and the lower appellate Court on appreciation of the evidence came to the conclusion that the verandah was a passage accessible to the public. The courts below found as a fact that the verandah was being used for about two decades by the public for passing and repassing. It was held that the verandah was a "street" in terms of Section 3(13)(a) of the Act. The Division Bench of the High Court upheld the findings of the courts below on the following reasoning:-
"It has been held in this case by all the three courts that the plaintiffs' verandah was a 'street' and it had been so used since the very beginning. On evidence all the courts have come to the conclusion that the verandahs were a passage accessible to the public. These were used by members of the public as a means of access and the owners had no 'right at all hours to prevent other persons from using' this space. The plaintiff Jagdish Pershad appeared in the witness box. He deposed that there was no dedication of verandahs to the public use and the owners could always stop any passerby from using the same. In cross-examination he admitted that the owners never stopped anybody from passing and repassing through these spaces. This course of conduct on the part of the owner is inconsistent with any other theory than that he intended a dedication. This is a reasonable inference of intent that may be drawn from evidence. On evidence the courts have found that the public used these verandahs without any let or hindrance..... In our opinion the question whether a particular place is a 'street' or not is essentially a question of fact. Long user can be evidence of dedication. Dedication can be inferred from public uninterrupted user for a substantial period of time. A way shall be presumed to have been dedicated as a street where it has been used by the public for twenty years as in this case. The public have availed themselves of this dedication and have used verandahs as streets because these were thrown open to the public use tacitly, if not expressly. From user of long duration an inference of dedication to the public would naturally arise. It is true that 'a single act of interruption by the owner is of much more weight upon a question of intention, than many acts of enjoyment' (Poole v. Huskinson per Baron Parke). But in this case there is not a single instance where there was an interruption by the owner which can be said to be a negation of the idea of dedication.... That the land was devoted to the public use is the finding of all the courts. The presumption arising from long uninterrupted user of a way by the public is so strong as to dispense with all inquiry into the actual intention of the owner of the soil, and it is not even material to inquire who the owner of the soil was..... On evidence the courts have uniformly come to the conclusion that the public has a right to pass and repass in the verandahs in question and the same are 'streets' within the meaning of the term as defined in Section 3(13)(a). The plaintiffs cannot be allowed to contest this finding of fact in this fourth court."
10. We see no ground to differ with the concurrent findings of the courts below and hold that the appellant has dedicated the verandah in dispute to the public use. It is being used for passing and repassing by the public at large and as such is a "street" in terms of Section 3(13)(a) of the Act. The appellant has, thus, surrendered his rights in the property for the benefit of the public. The user of the property is and always shall be with the public. Any space, passage, verandah, alley, road or footway dedicated to public by the owner for passing and repassing, partakes the character of a "street" and no longer remains under the control of the owner. The owner has no right at all times to prevent the public from using the same. When the owner of the property has, by his own volition permitted his property to be converted into a "street", then he has no right to claim any compensation when the same property is made a "public street" under Section 171(4) of the Act. The "streets" are meant for public use. It is necessary that the "streets" which are being used by the public are frequently repaired and are also saved from public abuse. It is common knowledge that in the absence of any regulatory control, the hawkers and squatters are likely to occupy the "streets" thereby creating nuisance for the public. In a situation like this it is necessary for the Committee to step in and exercise its powers under Section 171(4) of the Act. The Committee exercises regulatory control and is responsible for the repair and upkeep of the "public streets". The verandah in dispute is a "street". It has been declared as a "public street"
for the better enjoyment of the public-right in the said street. We hold that when a "street" is declared as 'public street' the owner, of the property comprising the said "street", has no right to claim compensation."
21. In the Gobind Pershad's case cited supra, the Apex Court referred the following paragraphs from Halsbury's Laws of England, 3rd Edn., Vol.19 at page 49 which runs as follows:
"The fact that a way has been used by the public so long and in such a manner that the owner of the land, whoever he was, must have been aware that the public believed that the way had been dedicated, and has taken no steps to disabuse them of that belief, is evidence (but not conclusive evidence) from which a court or jury may infer a dedication by the owner."
22. The area now earmarked for reserved purpose as plot B and C would come to 7% of the total lay out and the said property has been used by the respective plot owners of the respondent society for their community purpose which is evident from the documents exhibited as well as oral evidence, as also from the admission of D.W.1.
23. An admission is a best piece of evidence and there is nothing wrong to rely on a piece of admission to give a finding. The Apex Court in Gannmani Anasuya vs.P.A.Chowdhary reported in 2007(8) Scale 191 observed that an admission made by a party can be used against him and observed thus:
"22. An admission made by a party can be used against him. When such admission is made by a Karta of the Hindu undivided family, who is managing the family property as well as family business affairs, the same would be a relevant fact. When a claim was made by the plaintiffs for rendition of accounts in the lis, issuance of a document purported to have been authored by one of the parties, in our opinion, was required to be taken into consideration.
23. In terms of Section 58 of the Indian Evidence Act, 1872, a thing admitted need not be proved. [See Shreedhar Govind Kamerkar v. Yesahwant Govind Kamerkar & Anr. 2006(14) SCALE 174]"
24. The Apex Court in Noise Pollution v. INRE reported in 2005(5) SCC 733 considered the wide scope of Article 21 of the Constitution of India and held thus:
"10. Article 21 of the Constitution guarantees life and personal liberty to all persons. It is well settled by repeated pronouncements of this Court as also the High Courts that the right to life enshrined in Article 21 is not of mere survival or existence. It guarantees a right of persons to life with human dignity. Therein are included, all the aspects of life which go to make a person's life meaningful, complete and worth living. Human life has its charm and there is no reason why life should not be enjoyed along with all permissible pleasures........."
25. The trial Court as well as the first appellate Court, on the basis of the pleadings and evidence, arrived at a categorical conclusion that the reserved plot had been used for the community purpose of the respondents. Considering the large number of plots and the area covered by the lay out, the only possible conclusion with regard to the reserved area is to construe them as reserved for community purposes and not as reserved for the use of appellant and as such, I do not find any reason to disagree with the findings of the Court below.
26. Admittedly, the respondents are not claiming ownership right in respect of the open space and the same continue to vest in the appellant, as there is no dedication of the earmarked portion in favour of the local body. In the absence of open space kept for community use, the respondents and their children would be denied of a healthy living. Right to live with human dignity enshrined in Article 21 of the Constitution of India includes protection of health and right to clean environment. The witness examined on the side of the appellant clearly admitted that the open space is also to be used by the general public and the said admission if taken along with the other attending circumstances, like the resolution of the Municipality to open a vegetable market in the property, the steps taken by the Municipality to provide drinking water to the inhabitants of the area and all other similar circumstances would show that the property had all along been considered by the appellant as meant for community use and there is nothing to show that the appellant ever objected the use of the property by the respondents for such social purposes. In fact, the pleading as well as the evidence goes to show that the respondents have been using the reserved area for their social living and the same is proved by various exhibits marked on the side of the respondents. Therefore, considering the matter from any angle, the only possible conclusion is that the area earmarked as reserved plot in the lay out plan was earmarked only for the community use and no other inference is possible from the given facts.
27. The Apex Court in the case of Hero Vinoth vs. Seshammal reported in 2006(5) Scale 477 considered the jurisdiction of the High Court in second appeal to interfere in the judgment of the appellate Court and held thus:-
"19.It is not within the domain of the High Court to investigate the grounds on which the findings were arrived at, by the last Court of fact, being the first appellate Court. It is true that the lower appellate court should not ordinarily reject witnesses accepted by the trial Court in respect of credibility but even where it has rejected the witnesses accepted by the trial Court, the same is no ground for interference in second appeal when it is found that the appellate Court has given satisfactory reasons for doing so. In a case where from a given set of circumstances two inferences of fact are possible, one drawn by the lower appellate Court will not be interfered by the High Court in second appeal. Adopting any other approach is not permissible. The High Court will, however, interfere where it is found that the conclusions drawn by the lower appellate Court were erroneous being contrary to the mandatory provisions of law applicable or its settled position on the basis of pronouncements made by the Apex Court, or was based upon inadmissible evidence or arrived at by ignoring material evidence."
28. The trial Court as well as the first appellate Court considered the evidence in the light of the stand taken by the respective parties and concluded that the respondents have made out a case for injunction and the said finding is neither erroneous nor perverse warranting interference in second appeal. Therefore, I do not find any merit in the contention of the appellant and as such, the appeal is liable to be dismissed.
29. In the result, the Second Appeal is dismissed. However, in the facts and circumstances of the case, there shall be no order as to costs. Consequently, the connected miscellaneous petition is also dismissed.
SML To
1.The Principal District Judge, Thanjavur.
2.The District Munsif, Thanjavur.