ANDM.P.NOS.1 AND 3 OF 2007 v. The Commissioner

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 21.11.2007 CORAMTHE HONOURABLE MR.JUSTICE M.CHOCKALINGAMW.P.NO.549 OF 2007ANDM.P.NOS.1 AND 3 OF 2007National Bank for Agriculture & Rural Development,rep. by its Chief General Manager,K.V.Raghavalu,No.48,Mahatma Gandhi Road,Nungambakkam,Chennai-600 034... PetitionerVs.1.The Commissioner, Corporation of Chennai, Ribbon Building, Chennai.2.The Member Secretary, Chennai Metropolitan Development Authority, Thalamuthu Natarajan Building, No.1,Gandhi Irvin Road, Egmore, Chennai-600 008.3.M.Kesavan4.M/s.ENVEE Enterprises, A partnership Firm rep. by its Managing Partner M.V.Maniprakash, Old No.24, New No.39, Alagesan Road, Vedachalam Nagar, Chengalpattu.. Respondents This writ petition has been preferred under Article 226 of theConstitution of India praying for the issue of a writ of Declarationdeclaring that the South West Corner and the North east Corner of thelands shown in the planning permit No.1788/B/28A/C/86, dated21.2.1986 issued by the second respondent and from interfering withthe convenient enjoyment of the petitioner as provided in theplanning permit issued by the second respondent. https://hcservices.ecourts.gov.in/hcservices/ For Petitioner : Mr.K.M.Vijayan, SC for Mr.K.SukumaranFor Respondents: Mr.T.Mathi for R1 Mr.C.Kathiravan for R2 Mr.M.Sathyanarayanan for R3 Mr.AL.Somayajulu, SC for Mr.M.Md.Ashraf Ali for R4ORDERInvoking the writ jurisdiction of this court, the petitionerthough originally sought for a declaratory relief, subsequently hasamended the same to one of mandamus, forbearing the respondents inany manner altering or modifying the total land space, extent as perthe planning permit No.1788/B/28A/C/86, dated 21.2.1986 issued by thesecond respondent and from interfering with the convenient enjoymentof the petitioner as provided in the planning permit issued by thesecond respondent.2.The affidavit filed in support of the writ petition is perused.The court heard Mr.K.M.Vijayan, the learned Senior Counsel appearingfor the petitioner and also Mr.T.Mathi, learned counsel appearing forR1, Mr.C.Kathiravan for R2, Mr.M.Sathyanarayanan for R3 andMr.AL.Somayajulu, the learned Senior Counsel appearing for the 4threspondent.3.The following facts would emerge as admitted. An agreement ofsale was entered into by the petitioner with the respondents 3 and 4as owners and Developers respectively in respect of 8 grounds and1023 sq.ft. and to construct residential buildings over the said landas per the specifications of the petitioner, the fourth respondent,as developer, prepared a scheme for the development of the saidproperty and construction of residential buildings. Accordingly, aplan was prepared and the same was approved by the respondents 1 and2 on 20.1.1982 under sanction orders B.A.No.12/82 and PPA No.4/82respectively. As desired by the petitioner, the fourth respondentcompleted the construction and vacant possession of the flats werehanded over to the petitioners on 9.1.1987 along with site of 8grounds and 1023 sq.ft. Thus, the respondents 3 and 4 have performedtheir obligation under the agreement, referred to above. 4.While the matter stood thus, the fourth respondent filedC.S.No.753 of 1990 for specific performance of the agreement inrespect of the land to an extent of 10 grounds and 1750 sq.ft.against the third respondent and his wife on the basis of anagreement entered into between them on 8.5.1984. Pending same, anapplication in A.No.1615 of 1996 was filed by the petitioner toimplead itself as a party and the same was also ordered. While thematter stood thus, the petitioner also filed a suit in C.S.No.736 of1999 for specific performance of agreement, dated 10.5.1984.Accordingly, both the suits were taken up for trial together. Therewas a joint memo of compromise filed by the parties and the same wasrecorded. Accordingly, compromise decree came to be passed. InC.S.No.753 of 1990, no relief was granted against the petitioner, https://hcservices.ecourts.gov.in/hcservices/ since the relief to an extent of 2800 sq.ft. was passed in C.S.No.736of 1999. Following the same, the fourth respondent has made paymentas per the decree to the third respondent and got the sale deedexecuted in their favour. Therefore, to an extent of 2 grounds and879 sq.ft. in the north east and south west corner and for the entireextent of 10 grounds and 1750 sq.ft., the writ petition has beenbrought forth, alleging that it is in the possession of thepetitioner and it is sought to be interfered with by the respondents3 and 4 and under these circumstances, they have got to berestrained. Originally, a declaratory relief was sought for andsubsequently, it was one amended for the relief of mandamus andtherefore, to restrain the respondents from altering or modifying thetotal land space, as referred to above, this writ petition has beenpreferred. 5.Advancing his arguments on behalf of the petitioner, thelearned Senior Counsel would submit that in the instant case,pursuant to the agreement entered into between the petitioner on oneside and the respondents 3 and 4, owners and developers, on the otherside, a plan was submitted for approval before the respondents 1 and2 on 20.1.1982. It is true, the residential buildings are to beconstructed and as understood between the parties, it was 33 innumber and that would cover 8 grounds and 1023 sq.ft. But, the entireplan was placed before the authority for an entire extent of 10grounds and odd. Thus, once the plan has been prepared, therespondents 3 and 4, as the owner and also developer respectively,have also affixed their signature and the same has been placed forapproval. Under these circumstances, they should not be allowed tointerfere with the possession of the petitioner.6.The learned counsel would further add that the 2 grounds andodd would form part of the sanctioned plan. Once the plan has beenplaced, approved and sanctioned and it was also to construct the 33residential flats, it should be for the benefit of the petitioner.Apart from that once the 2 grounds and 879 sq.ft. forms part of theplan, which was placed for approval, in which the respondents 3 and 4were also a party, they cannot be allowed to say that they are theowners of the property or they are in possession of the property andhence, the attempted interference has got to be stopped. Even if anyplan is placed for approval before the respondents 1 and 2 in respectof any construction to be made on the alleged extent of 2 grounds and879 sq.ft., it should not be allowed, since it was not onlydetrimental to the interest of the petitioner, but also it wasagainst the plan originally placed, approved and sanctioned by therespondents 1 and 2 and under these circumstances, a writ has got tobe issued in favour of the petitioner. In support of his contention,the learned Senior Counsel has relied on the decision of this courtreported in 2007 (1) MLJ 856 (SASHIKALA REP. BY HER POWER AGENTK.SRIDHARAN, CHENNAI VS. S.A.SAHIDA BEEVI AND OTHERS) to the effectthat though the plan has been placed and approved by the authority,not mentioning of the vacant site and it is also a part and parcel ofthe scheme, all the flat owners are entitled to use the same andhence, the non-mentioning of the vacant site in the sale deed willnot in any way affect the right of the flat owners. https://hcservices.ecourts.gov.in/hcservices/

7.The learned Senior Counsel appearing for the 4th respondent andthe learned counsel appearing for respondents 1 to 3 are heard.8.The learned Senior Counsel appearing for the 4th respondent,opposing all the contentions put forth by the petitioner's side,would submit that in the instant case, the writ petition itself isnot maintainable. Originally, it is true, there was an agreementbetween the petitioner and the respondents 3 and 4, but it wouldcover only 8 grounds and odd. It is pertinent to point out that twosuits were filed. One suit was filed by the petitioner for specificperformance in respect of 8 grounds and odd, while the 4th respondentfiled a suit against the third respondent for the entire extent of 10grounds and odd. There was a compromise decree. It is pertinent topoint out that the petitioner herein was also a party to the suit andthe compromise decree would clearly reveal that the property alsoinclude the schedule of property and the schedule of property isexactly the subject matter of the writ petition. In the compromisememo, it was also made clear that the 4th respondent was in possessionof the property in question. Under these circumstances, it would befutile on the part of the petitioner to state that the petitioner isin possession of the property. 9.The learned counsel would further add that in the instant case,even from the averments in the affidavit, it would be quite clearthat the petitioner has approached the respondents 3 and 4 for thepurchase of the property, but the same was not fructified. Further,after becoming a party to the suit and after signing in thecompromise memo, where specific performance in respect of theproperty in question was granted in favour of the fourth respondentand the third respondent was also directed to execute the sale deed,the petitioner cannot be allowed to say that he is either the ownerof the property or he is in possession of the property or hispossession is likely to be interfered with. Even assuming that thealleged possession of the petitioner is likely to be interfered with,the remedy open to the petitioner is not before the court of writjurisdiction, but he has to approach the court of civil law. Underthese circumstances, the writ petition has got to be dismissed. 10.The learned Senior Counsel for the 4th respondent wouldfurther add that the decision of this court, as referred to by thepetitioner, is not applicable to the present facts of the case. Evenassuming that there is any attempted interference, there is noimpediment for the petitioner to make a complaint, by applying theparticular enactment and he should not have approached this court byway of the writ petition and that neither writ petition ismaintainable nor the relief asked for could be granted and hence, thewrit petition has got to be dismissed. 11.The court has paid its anxious consideration on thesubmissions made and also looked into the materials available. Afterdoing so, the court is afraid whether the relief as asked for by thepetitioner could be granted. It is not in controversy that there wasan agreement entered into between the petitioner on one side and therespondents 3 and 4, as the owner and developer respectively, on theother side for construction of 33 flats, which would cover 8 groundsand 1023 sq.ft. Accordingly, constructions were made and the entire https://hcservices.ecourts.gov.in/hcservices/ consideration was passed. The respondents 3 and 4 have handed overthe possession of 8 grounds and 1023 sq.ft. Added circumstance in theinstant case was the suit filed by the petitioner against therespondents in C.S.No.736 of 1999. It is not in controversy that itwas a suit filed by the petitioner for specific performance inrespect of only 8 grounds and 1023 sq.ft. and nothing more. Further,another suit was filed by the 4th respondent against the thirdrespondent in C.S.No.753 of 1990, seeking for the relief in respectof the entire property of 10 grounds and 1750 sq. ft. When both thesuits were taken up for joint trial, a compromise memo was filed bythe parties. It is pertinent to point out that the petitioner hereinwas also a party to the compromise memo. A perusal of the compromisememo, a copy of which is placed in the hands of this court, wouldindicate that the property, which is the subject matter of the writpetition before this court, was actually shown to be in possession ofthe 4th respondent. Under these circumstances, it would be highlydifficult to accept the plea of the petitioner that he is inexclusive possession of the property. 12.Apart from that, what is all pleaded is the attemptedinterference. The petitioner has claimed that he is in possession ofthe property and any attempted interference would be in contraventionof the plan originally placed by the respondents 3 and 4 and alsoapproved by the sanctioning authority, namely respondents 1 and 2.At this juncture, it is to be pointed out that once there isattempted interference of the alleged possession of the petitioner,it has got to be stated that the writ jurisdiction is not the forumto get the remedy, but the petitioner has to approach the properforum for the alleged act. In a given case like this, if there is anyconstruction is attempted to be made and that too in a part andparcel of the land, which is originally found in the plan placed,approved and sanctioned by the sanctioning authority, the petitionercan well place a complaint before the proper forum for necessaryaction in this regard. At this juncture, it is to be pointed out thatit is only an apprehension and that the relief asked for is onlyanticipatory in nature. Under these circumstances, in this regardalso, the relief of mandamus could not be granted. Therefore, thepetitioner is at liberty to approach the proper forum for appropriaterelief, if and when necessity arises. Any observations made by thiscourt, as recorded above, will not in any way prevail upon theauthority, before whom the remedy is sought for. Accordingly, thiswrit petition is disposed of. No costs. Consequently, the connectedMPs are closed. Sd/-Asst. Registrar./true copy/Sub Asst. Registrar.vvk https://hcservices.ecourts.gov.in/hcservices/ To1.The Commissioner, Corporation of Chennai, Ribbon Building, Chennai.2.The Member Secretary, Chennai Metropolitan Development Authority, Thalamuthu Natarajan Building, No.1,Gandhi Irvin Road, Egmore, Chennai-600 008.+ 1 CC To Mr. M.Md.Ashrat Ali, Advocate SR NO.69190+ 1 CC To Mr. C.Kathiravan, Advocate SR NO.69072+ 1 CC To Mr. T.Mani, Advocate SR NO.69105+ 1 CC To Mr. K.Sukumaran, Advocate SR NO.68925+ 1 CC To Mr. M.Sathyanarayanan, Advocate SR NO.68852W.P.NO.549 OF 2007nsm[co]gp/27.11.