Bagram v. The Commissioner, Coimbatore City Municipal Corporation & Ors

2007, partly reversing the judgements and decrees dated 5.3.2007passed by the Subordinate Judge, Coimbatore, in O.S.Nos.522, 530 and526 of 2005. For the sake of convenience, the parties are referred tohereunder according to their litigative status before the trialCourt. 2. Broadly but briefly, narratively but precisely, therelevant facts absolutely necessary and germane for the disposal ofthese second appeals, would run thus:(a) The respective appellants in the second appeals wereplaintiffs in the three suits separately filed by them before theSub Court, Coimbatore. The gist and kernal, the sum and substance ofthe averments in the three plaints are almost similar, which wouldrun thus:-(i) The properties described in the schedule of the plaintsbelong to the Sowripalayam Rural Co-operative Housing Society(hereinafter referred to as the 'Housing Society' for short), whichsold those properties in favour of the plaintiffs and they startedenjoying the same exclusively for more than 18 years. The suitproperties in those suits, including the one other adjoining areatotally measuring an extent of 26 cents were earmarked forconstruction of a nursery school in the larger lay out plan approvedby the planning authority, consequent upon the said Housing Societyhaving submitted a plan for developing a large area for house sites.However, subsequently, the said Housing Society divided a portion ofthat area earmarked for nursery school into three moieties (the suitproperties) and sold them in favour of each of the three plaintiffsherein.(ii) D2-the G.R.G.Nagar Welfare Society even though had no powerto alienate or transfer the suit properties, involved in thislitigation, simply executed a gift deed-Ex.A4 dated 11.2.2005 infavour of defendant No.1 as though the latter could put to publicuse. Hence, three suits were filed, incorporating in each of thesuits the following prayers.1.To declare that the plaintiff is the absolute ownerof the suit property;2. to declare that the Gift Settlement Deed dated11.2.2005 and registered as document No.351 of 2005 isinvalid, illegal, unenforceable and void abinitio;3. to declare that the resolution No.15 passed by thefirst defendant on 28.9.2005 as invalid, unenforceable,arbitrary and illegal;4. to grant permanent injunction, so as to restrainthe defendants from in any way disturbing the plaintiff'speaceful possession and enjoyment of the suit scheduleproperty'5. to direct the defendants to pay cost of the suit." https://hcservices.ecourts.gov.in/hcservices/ (b) Per contra, remonstrating and refuting theallegations/averments in the plaints, D1 and D2 filed separatewritten statements in each of the suits to the effect that theSowripalayam Rural Co-operative Housing Society had no right toalienate the suit properties, which were earmarked for constructionof a nursery school for the welfare of the said newly emerged colony,as per the approved lay out issued in favour of the said HousingSociety.(c) The trial Court framed the relevant issues. During trial,in O.S.No.522 of 2005, on the plaintiff's side one Radhakrishnan wasexamined as P.W.1 and Exs.A1 to A25 were marked. On the defendants'side D.W.1 to D.W.4 were examined and Exs.B1 to B17 were marked.Ex.C1 to C3 were marked as Court documents.(d) In O.S.No.530 of 2005, on the plaintiff's side oneShanmugapriya was examined as P.W.1 and Exs.A1 to A23 were marked.On the defendants' side D.W.1 to D.W.4 were examined and Exs.B1 toB17 were marked. Ex.C1 to C3 were marked as Court documents. (d) In O.S.No.526 of 2005, the plaintiff examined herself asP.W.1 and Exs.A1 to A25 were marked. On the defendants' side D.W.1to D.W.5 were examined and Exs.B1 to B.19 were marked. (e) Ultimately, the trial Court decreed the original suits intoto. (f) Being aggrieved by and dissatisfied with the judgements ofthe trial Court, three appeals in A.S.Nos.118, 119 and 117 of 2007were filed before the District Judge, Coimbatore, by D1-theCommissioner, Coimbatore City Municipal Corporation, Coimbatore, andthe appellate Court partly allowed the appeals by setting aside theGift Deed executed by D2 in favour of D1, but rejecting the otherprayers for declaration of plaintiffs' title over the suitproperties, for injunction and for declaration of the resolutionNo.15 passed by the first defendant on 28.9.2005 relating to the suitproperty.3. Animadverting upon the appellate Courts judgements, theplaintiffs filed the second appeals on various grounds, the gist andkernal, the warp and woof of them would run thus:The first appellate Court failed to take into consideration thefact that despite the suit properties having been earmarked fornursery school, the Sowripalayam Rural Co-operative Housing Societygot itself divested of its ownership and the said Society had re-thinking over it and passed resolution to alienate the suitproperties in favour of the plaintiffs, who acquired valid title overthe same under the sale deed-Ex.A1 dated 22.5.1987. The firstappellate Court also failed to take into account Ex.A3 dated17.8.1987 and Ex.B1 dated 24.5.1985 (in O.S.Nos.522 & 530 of 2005); https://hcservices.ecourts.gov.in/hcservices/ Ex.B6 (in O.S.No.526 of 2005)-the circulars issued by the authoritiesconcerned, as those circulars enabled the said Sowripalayam RuralCo-operative Housing Society to alienate those areas earlierearmarked for nursery school. The first appellate Court also failedto take into consideration that the plaintiffs have always been readyand willing to put the areas purchased by them for raising nurseryschool for mentally retarded, creche and nursery school, which are inpari materia with the purpose for which those areas were earmarked inthe approved plan. Accordingly, the appellants suggested thefollowing substantial questions of law:"(i) Is the learned District Judge correct in dismissingthe suit having held that the Gift Settlement Deed dated11.2.2005 is invalid and the only recourse open to therespondent is to proceed under Town and Country Planning Act?(ii) When the appellant is admittedly in possession fromthe date of purchase and got perfected title by adversepossession, is the learned District Judge right in dismissingthe suit?(iii) When Ex.B3 and A6 specifically and categoricallypermit the reserved land to be sold to members who intendedto develop for the same purpose, is the learned DistrictJudge correct in dismissing the suit?"4. After hearing both sides for sometime, I was of the view thatthe following substantial questions of law could be framed andaccordingly framed as under. With the consent of both sides, thematter is being disposed of on merits.1. Whether the first appellate Court was justified inholding the sale deeds in favour of the appellants as nulland void, even though there is no specific pleading on thepart of the defendants that the resolution passed by theCo-operative Society concerned and the consequentexecution of the sale deed in favour of the plaintiff areillegal and whether the sale executed by the Co-operativeSociety in favour of the plaintiff in the wake of theavailable evidence could be termed as one executed by theSociety, without any legal backup or statutory sanction?2. Whether the first appellate Court was justified indeciding that the transfer of the suit property by theSociety in favour of the plaintiff is void, ignoring theprovisions of the Transfer of Property Act that an ownercould transfer the property in favour of a third party andthat too, in the wake of the decision of the HonourableApex Court reported in AIR 2003 SUPREME COURT 1648 –M/s.D.L.F.Qutab Enclave Complex Educational CharitableTrust vs. State of Haryana and Others.3. Whether Ex.A3 and Ex.B1 dated 24.5.1985 (inO.S.Nos.522 & 530 of 2005); Ex.B6 (in O.S.No.526 of 2005) https://hcservices.ecourts.gov.in/hcservices/ were misconstrued by the first appellate Court in giving afinding relating to the sale executed by the HousingSociety in favour of the plaintiffs?4. Whether there is any perversity or non-applicationof law in rendering the judgement by the first appellateCourt?5. Both sides took note of the above substantial questions oflaw and advanced their arguments in this connection6. Indubitably and indisputably, the said Co-operative HousingSociety, referred to supra, developed a vast tract of land as housesites and in that, for roads and other amenities, areas wereearmarked. 10% of the area as contemplated under Section 250(2) ofthe Coimbatore City Municipal Corporation Act was also reserved bythe said Society. However, the Society passed a resolution toalienate the area earmarked for nursery school, in the said reserved10% area to the three of the plaintiffs, who are the secondappellants herein. These plaintiffs approached the RevenueDepartment concerned and got the patta changed in their names.However, subsequently, it was cancelled as without any correspondingchange in the approved plan they got such mutation in the Revenuerecords. It is also a fact that a temple was constructed by someresidents in the area, which was earmarked for nursery school, inviolation of the approved plan, but that is not the subject matter ofdispute here. R2 in fact executed Ex.A4-the Gift Deed in favour ofD1-the Municipality. Consequently, D1 attempted to meddle with thearea purchased by the plaintiffs. Whereupon, the suits were filed.7. The learned Senior counsel for the plaintiffs would set forthand put forth his argument projecting that the second defendant, whois only a Welfare Society was not at all the owner of the suitproperties involved in the three suits, nonetheless, they did chooseto execute such gift deed in favour of D1-the Municipality.8. I could see considerable force in the submission made on theplaintiffs' side in view of the maxim 'Nemo dat quod non habet' (noone can convey better than what he has).9. Accordingly if viewed the Welfare Society could only takecare of the welfare of the residence of the colony, but they cannothave any ownership right over the immovable properties situated inthe said colony and as such, it is glaringly and pellucidly,axiomatically and apparently clear that such a gift deed executed byD2 in favour of D1, is without any basis and D1, thereby cannot beheld to have acquired any valid right by virtue of the said giftdeed. As such, the trial Court's finding on this issue is correct. https://hcservices.ecourts.gov.in/hcservices/

10. The first appellate Court also agreed with the trial Courton that point is concerned. However, after holding so, the firstappellate Court, without au fait with law and au courant with facts,held that the plaintiffs did not acquire valid title under theirrespective sale deeds, as according to the first appellate Court'sview, the said Co-operative Housing Society had no right to transferthe property, since as per the approved plan, the said area is comingwithin the 10% reserved area. 11. The learned Senior counsel for the plaintiffs citing thedecision of the Honourable Apex Court reported in AIR 2003 SUPREMECOURT 1648 – M/s.D.L.F.Qutab Enclave Complex Educational CharitableTrust vs. State of Haryana and Others, would advance and develop hisargument highlighting that even the 10% reserved area could betransferred by the Housing Society, as it happened to be the owner ofthe property, but subject to the condition that the purchaser,namely, the plaintiffs should put to use the said land only for thepurpose for which it is earmarked in the approved plan, so to say fornursery school purpose. 12. Whereas, the learned Senior counsel for D2 would put forthhis arguments, which were adopted by the learned counsel for D1,expatiating that the said Housing Society had no right to alienatethe suit properties, which formed part of the said 10% area, as thereis a statutory embargo as per Section 250 (2) of the Coimbatore CityMunicipal Corporation Act, 1981; the plaintiffs who happened to bethe transferees under those sale deeds cannot be treated as owners;the plaintiffs did not have had genuine intention of running anynursery school incommensurate with the purpose for which the land wasearmarked in the approved plan; they, by their own conduct, exposedthemselves as though they purchased the property only as housingplots and subsequently also illegally got mutation in the Revenuerecords, for house building purpose, and subsequently, the Revenueauthorities cancelled such mutation and the sub division of the suitproperties and as such, it is too late in the day on the part of theplaintiffs to have a volte face, and that too quite antithetical totheir stand, to plead and pose as though (i) the plaintiff inO.S.No.522 of 2005 is willing to construct a nursery school formentally retarded (2) the plaintiff in O.S.No.530 of 2005 is going toconstruct a creche (3) the plaintiff in O.S.No.526 of 2005 is goingto construct a nursery school; no person can construct in such asmall plot of 2930 sq.feet, any school worth the name; furthermore,as per the current policy of the Government, for constructing schoolsthere should be adequate space, which is not at all available for theplaintiffs to fulfil such purpose and the Co-operative HousingSociety had not obtained approval from the Registrar of Co-operativeSocieties for effecting such sales in favour of the plaintiffs. https://hcservices.ecourts.gov.in/hcservices/

13. It is just and necessary, at the first instance, to refer tothe judgement of the Honourable Apex Court, reported in AIR 2003SUPREME COURT 1648 – M/s.D.L.F.Qutab Enclave Complex EducationalCharitable Trust vs. State of Haryana and Others, certain excerptsfrom it would run thus:- "33. Right of transfer of land is indisputably incidentalto the right of ownership. Such a right can be curtailedor taken away only by reason of a statute. An embargo uponthe owner of the land to transfer the same in the opinionof this Court should not be readily inferred. Section 3(3)(a)(iv) of the Act does not expressly impose anyrestriction. The same is merely a part of an undertaking.Assuming that a prohibition to transfer the land can beread therein by necessary implication, it is interestingto note that the consequence of violation of suchundertaking has not been specified. In other words, if atransfer is made in violation of the undertaking, thestatute does not provide that the same would be illegal orthe transferee would not derive any title by reasonthereof.34. The right of a transferee, however, would be subjectto the building laws or regulatory statute relating touser of the property. In terms of the said Act, in theevent the Government takes over the plots, it would be atliberty to transfer such land to any person or institutionincluding a local authority as it may deem fit. Purpose ofsuch a clause, therefore, is to ensure that schools,hospitals, community centres and other community buildingsare established at the places reserved therefor in thesanction plan but there does not exist any embargo asregards the person or persons who would run and manage thesame.35. A regulatory Act must be construed having regard tothe purpose it seeks to achieve. The State as a statutoryauthority cannot ask for something which is notcontemplated under the Act. A statute relating toregulation of user of land must not be construed to be alimitation prohibiting transfer of land which does notaffect its user.36. The plan provides that schools, hospitals etc. wouldbe located at particular sites. When that purpose issatisfied, the court in the name of interpretation wouldnot make a further attempt to find out who did so.37. It is not in dispute that Respondents 1 and 2 havesought to impose such a ban specifically by reason of theimpugned circulars issued in the years 1994 and 1996,which in unmistakable terms go to show that even according https://hcservices.ecourts.gov.in/hcservices/ to them such a bar did not exist prior thereto. It isaccepted that even the respondents concerned hadrecognised at least three transfers. If transfer of thesites reserved for construction of school was prohibitedunder the statute, it is axiomatic that in absence of anyprovision contained therein, the respondent could notexercise any power of regularising such transaction. Atransfer prohibited by a statute would be illegal and notirregular. Once it is held that such transfer would onlybe “irregular” which can be cured, it would necessarilymean that there was no absolute statutory bar in relationthereto. The building plans which were submitted onvarious days in 1992 and onwards had been accepted andsanctioned. If it be held that such transfers by DLF wereillegal, there was no occasion for Respondents 1 and 2herein to pass the building plans keeping in view of thefact that the transferee thereof did not acquire any titlewhatsoever. Such a right of transfer to third parties toraise construction having been accepted by Respondents 1and 2 prior to 1994, it does not now lie in their mouth tocontend that there existed a statutory bar. The primalquestion is as to whether by reason of an executive fiat,a right to transfer one’s own property could be curtailed.The answer to the said question must be rendered in thenegative.38. Expropriatory statute, as is well known, must bestrictly construed.39. In terms of Section 3 of the Act, a colonizer has toconstruct schools, hospitals, community centres andcommunity buildings at its own cost or to get the sameconstructed by any other institution at its cost and forthe said purpose lands have to be set apart. However, inthe event the same is not done within a reasonable time,the State would be at liberty to take over the lands andfulfil the said objects as specified in the sanctionedplan. The power of the Government to take over the landsmust be held to be restricted and would be applicable onlyin a case where community services had not been developed.In other words, where the community services had not beendeveloped the question of acquisition thereof by theGovernment would arise and not in any other situation.40. The High Court in our opinion, committed a manifesterror in holding that despite the fact that the statuteuses two different expressions as regards cost to beincurred for construction of schools, hospitals andcommunity centres etc., the effect thereof would be thesame. In case of the licensee the words used are “at hisown cost” whereas in respect of the others, the words usedare “at its cost”. When different terminologies are used https://hcservices.ecourts.gov.in/hcservices/ by the legislature it must be presumed that the same hadbeen done consciously with a view to convey differentmeanings. Had the intention of the legislature been, ashas been held by the High Court, that the cost for such aconstruction has to be borne by the licensee irrespectiveof the fact as to whether it undertakes such constructionsitself or gets them constructed by its contractors, therewas absolutely no reason as to why clearer terms could notbe used by the legislature. The words “at his own cost”refer to the licensee, whereas in the case of his nomineebeing either an institution or a person, as the case maybe, the words “at its cost” have been used. The expression“at his own cost” and “at its cost” must be held to haveseparate and distinct meaning. They are not meant to aimat the same person.41. The words “institution” or “person” evidently do notrefer to a building contractor as understood in ordinaryparlance. It must be held to carry different meanings.Indisputably, any person can get constructions made on hisown land either under his own supervision or through acontractor. For the purpose of raising constructionsthrough a contractor, permission of the statutoryauthorities is not necessary. In that view of the matter,clearly the legislature did not contemplate that the words“any other institution or individual” refer only to abuilding contractor for the purpose of construction of thebuildings alone and for no other purpose."14. I would like to observe that the said judgement of theHonourable Apex Court is a land mark judgement, which highlighted andspotlighted the fact that simply because in the approved plan certainareas are earmarked for certain public purpose, that it does not meanthat the developer had lost his right over it; a developer couldalienate even such area reserved for public purpose, provided, thepurchaser of it should use it for the very same purpose for which itwas earmarked in the approved plan. In other words, the right toalienate by the developer is one guaranteed under Article 300-A ofthe Constitution of India and also under the Transfer of Property Actand such a restriction regarding use would run with the land. Inthis legal background, the first appellate Court failed tovisualise the matter and it fell into error in holding as though thesales effected by the Housing Society in favour of the plaintiffs areinvalid. The plaintiffs cannot put to use the said area for theresidential purpose, but they could only put to use for the purposeof constructing nursery school, as contemplated in the approved plan.It is also quite obvious that in each and every plot, theconstruction of a nursery school is totally impossible and theycannot try to hood-wink or bamboozle, flummox or confuse, obfuscateor perplex the authorities by stating that each and every three of https://hcservices.ecourts.gov.in/hcservices/ the plaintiffs would raise a nursery school for mentally retarded,creche and nursery school, respectively, and try to get planapproval, because in such small area, no school/institution worththe name could be constructed and it would be quite against all normsof construction of non-residential institutions and such a positionis palpably and pellucidly, obviously and axiomatically clear and nomore elaboration is required in this regard. 15. Over and above that the recent Notifications of theGovernment dated 17.8.1987 and 24.5.1985 also would display anddemonstrate as to what are all the requirements for constructingeducational buildings. Whether the said Notifications are squarelyapplicable to the nursery school or not, this Court while dealingwith this case is of the firm view that constructing abnormally smallinstitution, like pigeon holes for children would be deleterious totheir welfare. As such, it is crystal clear that as per theHonourable Apex Court's judgement, referred to supra, the ownershipright acquired over the land by each of the plaintiffs is subject tolegal approval regarding land use.16. The learned Senior counsel for the D2 would submit that ifthis Court upholds the ownership right of the plaintiffs over thesuit properties even by imposing conditions as set out supra,certainly the plaintiffs would try to confuse the executiveauthorities and take undue advantage of the judgement of this Court.17. I make it clear that the authorities are expected to applytheir mind and read the judgement of this Court and understand inproper perspective and no holder of a decree would be legallyentitled to misinterpret the judgement and decree of this Court andif any one does do, it would amount to contempt of Court. 18. The learned Senior counsel for the plaintiffs also cite thedecision of the Division Bench of this Court reported in 2007(3) MLJ990-Sri Devi Nagar Residences Welfare Association vs. Subbathal andOthers, and an excerpt from it would run thus:"10. We, therefore, appreciate the interest of theresidents of the area, who have purchased the plots as perthe approved lay out, that for the benefit of the ecology,certain areas should be earmarked for garden and park soas to provide fresh air to the residents of that locality.To that extent, we disagree with the learned single Judgethat the residents of the locality are not necessaryparties for the simple reason that respondents 1 to 3 havegot the layout approved, as per the proceedings dated17.7.1994, with the specific conditions, referred toabove, which becomes the part and parcel of the terms ofthe sale deeds. Therefore, it would be too harsh to saythat the residents of the locality are not properparties." https://hcservices.ecourts.gov.in/hcservices/

19. The said decision is on the point that the area earmarked inthe approved plan will run with the terms and conditions of the saledeed and as such, such a view is incommensurate with the viewexpressed by the Honourable Apex Court in the cited decision AIR2003 SUPREME COURT 1648.20. The learned Senior counsel for the plaintiffs also cited thefollowing two decisions of this Court.(i) (2008) 2 MLJ 824 – RAJA BASKARA KUMARA SHANMUGAM @N.KUMARAN SETHUPATHY VS. DIRECTOR OF TOWN AND COUNTRY PLANNING ANDANOTHER;(II) (2008) 2 MLJ 184-K.S.KAMAKSHI CHETTY AND OTHERS VS.COMMISSIONER, ARUPPUKOTTAI MUNICIPALITY, ARUPPUKOTTAI AND ANOTHER21. The above decisions are on a different point relating to theright of the authority concerned to take over the land earmarked forpublic purpose.22. Whereas, the learned Senior counsel for the defendants citedthe following decisions and hence, it is just and necessary to referto them also:(i) 2004 WLR 514-1.R.VARADARAJAN AND OTHERS VS. 1.THE DIRECTOROF TOWN AND COUNTRY PLANNING AND OTHERSThis decision has been cited for the purpose of canvassing thepoint that when the sale deeds in favour of the plaintiffs executedby the Society lack bona fides, such sales cannot be the bases fordeclaring the title of the plaintiffs by the Court. Based on thesaid decision, the learned Senior counsel for the second defendantwould develop his argument projecting that the said Housing Society,without the authorisation of the Registrar of the co-operativeSociety, executed the sale deeds and that too, for housing purpose,quite antithetical to the nursery school purpose for which it isearmarked. I am of the opinion that the defendants, as already held supra,as of now are having nothing to do with the suit properties. Ofcourse, D1 the Corporation and even D2 the Welfare Society arehaving the right to take legal steps to enforce the plan inappropriate manner and at present, this Court is not concerned withthat issue. Once the defendants are turned out to be the personshaving no interest in the immovable property as of now, virtually,they cannot be heard to contend that the right acquired by theplaintiffs are defective on the ground that the vendor, namely, theHousing Society had not obtained proper permission from theRegistrar. Tamil Nadu Co-operative Societies Act is a self-containedAct and the Registrar of Co-operative Societies, has been vestedwith enormous powers. If the Housing Society mismanages its affairsor illegally transfers its land, certainly the Registrar has got https://hcservices.ecourts.gov.in/hcservices/ power to take action. I would like to incidentally point out that itis open to the defendants to set the law in motion by approaching theRegistrar of Co-operative Societies. But in this suit, thedefendants cannot pick holes in the title of the plaintiffs, whoacquired title to the suit properties by virtue of those three saledeeds executed by the Housing Society, which, as per the HonourableApex Court's judgement, was the owner as on the date of effectingsuch sales. As such, I could see no force in the argument put forthon the side of the defendants.23. (ii) 1995(1) SCC 47-PT.CHETRAM VASHIST (DEAD) BY LRS. VS.MUNICIPAL CORPORATION OF DELHI.This decision is for the purpose of highlighting that once anarea is reserved for public purpose, as per the plan, then theoriginal owner seizes to be the legal owner of the land. Avoiding digressive discussion, I may straight away point outthat the subsequent decision of the Honourable Apex Court reported inAIR 2003 SUPREME COURT 1648, (cited supra), would unambiguously andunequivocally spotlight the fact that the colonizer who reserved thespace for public purpose, can transfer the same, but it is subject tothe conditions relating to land use. I may put it otherwise that thesaid earmarking of an area for public purpose would be an encumbrancelike mortgage, which would run with the land and whomsoever acquiresit, could use the same only subject to that encumbrance and thecondition relating to land use.24. The learned Senior counsel for D2 would try to canvas thepoint that in fact the Honourable Apex Court in the decision reportedin AIR 2003 SUPREME COURT 1648 had no occasion to deal with theissue relating to alienation of 10% area referred to in Section 250(2) of the Coimbatore City Municipal Corporation Act, 1981, or asimilar provision, but in that case, decided by the Honourable ApexCourt, a trust was created by a group of companies and it was askedto carry out the public purpose and the trust in turn entered intoagreements of lease with one other Society, which was unsuccessfullychallenged in that case.25. A plain reading of the cited judgement of the HonourableSupreme Court reported in AIR 2003 SUPREME COURT 1648 would revealthat Section 3(3)(a)(iv) of the Haryana Urban Development andRegulation of Urban Areas Act(8 of 1975) was interpreted and in thatconnection the judgement emerged. I could see much of muchnessbetween the facts in that case and in this case. 26. No doubt, the 10% reserved area was not specificallyinvolved in the decision of the Honourable Apex Court, but issuerelating to a similar area was dealt with in that case. I could evengo to the extent of pointing out that even if it is taken that the https://hcservices.ecourts.gov.in/hcservices/ judgement of the Honourable Apex Court at paragraph 34 to 41extracted above constitutes 'obiter' as per the view of thedefendants, still it is a binding precedent. 27. Unambiguously and unequivocally, without mincing words,their Lordships of the the Honourable Apex Court in the judgementreported in AIR 2003 SUPREME COURT 1648 clearly held that a coloniseris having a right to transfer even the areas earmarked for publicpurpose except streets, perks, passages and such like.28. In this case, the area earmarked happened to be one fornursery school and part of it was transferred to the plaintiffs.Hence even by phantasmegorical thoughts it cannot be said that thesaid decision of the honourable Apex Court is not applicable to thefacts and circumstances of this case. But the first appellate Courthas not considered these aspects at all and fell into error indismissing the prayer for declaration of the plaintiffs' title overthe suit properties. 29. (iii) 1995(5) SCC 762- DR.G.N.KHAJURIA AND OTHERS VS. DELHIDEVELOPMENT AUTHORITY AND OTHERS.This decision is concerning a set of facts where a site whichwas earmarked for park was allowed by the Delhi Development Authorityfor constructing a nursery school and in that connection theirLordships held that it was not open to the Delhi DevelopmentAuthority to carve out any space meant for park, for nurseryschool.In view of my discussion supra and that too, based on thedecision of the honourable Apex Court reported in AIR 2003 SUPREMECOURT 1648, the above decision cited by the learned counsel for thedefendants is not relevant to the facts and circumstances of thiscase.30. (iv) 2004(3) CTC 251- AMMANI VS. THE TIRUCHENGODEMUNICIPALITY. (V) 2007(4) CTC 67-T.GNANAMANI AMMAL VS. THE AVANIAPPURAMTOWN PANCHAYAT. In view of the decision of the Honourable Apex Courtreported in AIR 2003 SUPREME COURT 1648, cited supra, the above twodecisions are not relevant to this case.31. (vi) 2002-3-L.W.180-1.E.ELUMALAI AND 11 OTHERS VS.1.CORPORATION OF MADRAS AND OTHERS32. (vii) AIR 1991 SCC 1902-BANGALORE MEDICAL TRUST V.B.S.MUDDAPPA https://hcservices.ecourts.gov.in/hcservices/

33. (viii) 1991(4) SCC 464-M.I.BUILDERS PVT.LTD VS.RADHEY SHYAMSAHU.These aforesaid three decisions were cited, without anyelaboration, and the samde would not have any relevance to the factsof the present case and the decision of the Honourable Apex Courtreported in AIR 2003 SUPREME COURT 1648, referred to supra, wouldgovern the field.34. (ix) (2007) 4 MLJ 1006 – KARPAGA NAGAR NALA URIMAISANGAM VS. MUNICIPAL ADMINISTRATION AND WATER SUPPLY DEPARTMENT.A plain reading of the above decision would reveal that it isnot relevant to this case, as it is concerning to the liability tokeep certain plots for public purpose and there could be no quarrelover with such a proposition.35. The learned counsel for the defendants cited the followingother decisions, which are in my opinion not relevant in view of theApex Court's judgement reported in AIR 2003 SUPREME COURT 1648.(i) (1995) 5 SUPREME COURT CASES 762 – DR.G.N.KHAJURIA ANDOTHERS VS. DELHI DEVELOPMENT AUTHORITY AND OTHERS(ii) (2004) 5 SUPREME COURT CASES 182- MUNICIPAL CORPORATION,LUDHIANA AND ANOTHER VS. BALINDER BACHAN SINGH (DEAD) BY LRS(iii) LAKSHMI VS. SENNEERKUPPAM PANCHAYAT AND OTHERS(iv) 2006(5) CTC 504 – THE CORPORATE MANAGER, CSI CORPORATESCHOOLS, CSI VS. THE STATE OF TAMIL NADU(vii) (2009) 2 SUPREME COURT CASES 673 – C.CHERIATHANV.P.NARAYANAN EMBRANTHIRI.36. The learned Senior counsel citing the following decision ofthis Court reported in 2007(5) CTC 392 – M.KANAGASABAPATHY VS. 1.THESPECIAL OFFICER AND OTHERS has argued that the maxim 'Generaliaspecialibus non derogant' is applicable. 37. I would like to cite the following other maxims also inthat line(i) Expressio unius est exclusio alterius;(ii) Expressum facit cessare tacitum, which means the expressmention of one thing implies the exclusion of another. 38. In the above decision cited by the learned counsel for thedefendants, the point decided was that the special enactment, namely,Tamil Nadu Payment of Subsistence Allowance Act, 1981, will prevailover the Tamil Nadu Co-operative Societies Payment Act, in matters ofsubsistence allowance to the employees, governing the payment ofsubsistence allowance, who are under suspension and as such I couldsee no relevancy in the facts and circumstances of this case. https://hcservices.ecourts.gov.in/hcservices/

39. In view of the categorical dictum laid down by the SupremeCourt in the cited decision AIR 2003 SUPREME COURT 1648, unless thereis any specific provision of deprivation of ownership, in a statute,the question of depriving an owner of his right over the propertywould not arise. Under Section 250 of the Coimbator City MunicipalCorporation Act, 1981, even though such alienation of the reservedarea would be punishable, nevertheless it does not say that thecoloniser would not be the owner of the property and the transfereefrom such coloniser would not acquire title over it at all.40. The learned counsel for D2 would submit that once suchalienation is punishable under law, then the connected transactionshould be held as void. 41. I would like to disagree with such a view for the reasonthat even child marriage is prohibited and it is punishable as anoffence, yet the validity of the marriage is not affected. As such,unless law specifically mandates that such transfer would be void,the voidity of such transfer cannot be assumed and presumed in thelight of the decision of the Honourable Apex Court reported in AIR2003 SUPREME COURT 1648, cited supra.42. The learned Senior counsel for D2 took pains to expound thatthe plaintiffs cannot be heard to contend that D2 is having no locusstandi to argue this appeal because D2 did not file any first appeal.43. I am of the view that since D1 and D2 are parties here, theyare entitled to argue the matter and accordingly, argued and I havealso heard their arguments and considered their submissions, but Icould not countenance and uphold their submissions and contentionsfor the reasons cited supra.44. The learned counsel for the plaintiffs has contended thatthere was no pleading in the written statement challenging theauthority of the Co-operative Society to transfer the suitproperties in favour of the plaintiffs.45. The learned Senior counsel for D2, by inviting the attentionof this Court to the various portions of the written statement wouldhighlight that the right of the Co-operative Society was challengedand that itself would be sufficient pleading. 46. To the risk of repetition and pleonasm without beingtautalogous, I would like to hold that already I have held that thesale deed executed by the Society in favour of the plaintiffs cannotbe held to be invalid on the ground that the Society did not obtainpermission from the Registrar and as such, on some technical ground,that D2 did not plead specifically those points relegates to a lowerlevel and dies down in oblivion. https://hcservices.ecourts.gov.in/hcservices/

47. The learned counsel for the plaintiffs placing reliance onEx.A3 and Ex.B1-the Notifications, would highlight that even theGovernment passed Notifications empowering such colonisers toalienate the 10% areas reserved for public purpose. However, theleaned Senior counsel for D2 would contend that quite antithetical tothe statutory provisions as contained in Sec.250(2) of the CoimbatoreCity Municipal Corporation Act, 1981, the Government itself had noright to pass such Notifications, as contained in Ex.A3 and Ex.B1. 48. My discussion supra based on the Judgement of the HonourableApex Court reported in AIR 2003 SUPREME COURT 1648 would clearlyestablish and evince that even de hors Ex.A3 and Ex.B1-theNotifications, the Co-operative Society had the right to alienate andas such Ex.A3 and Ex.B1 are buttressing and fortifying the stand ofthe Housing Society.49. In the result, the substantial questions of law are answeredas under:-The substantial question of law (i) is decided to the effectthat the first appellate Court was not justified in holding the saledeeds in favour of the plaintiffs as null and void and those saledeeds are valid subject to the condition that the plaintiffs cannotput to use those lands for the purposes which the plaintiffsarbitrarily and undesirably stated as though in each of the plotseach of the plaintiffs would construct (i) nursery school formentally retarded, (ii) creche and (iii)nursery school.The substantial question of law (ii) is decided to the effectthat the first appellate Court was not justified in deciding that thetransfers of the suit properties by the Sowripalayam Rural Co-operative Housing Society in favour of the plaintiffs are void byignoring the provisions of the Transfer of Property Act and thedecision of the Honourable Apex Court reported in AIR 2003 SUPREMECOURT 1648.The substantial question of law (iii) is decided to the effectthat the first appellate Court misconstrued the GovernmentNotifications, which are in pari materia and in consonence with thedecision of the Honourable Apex Court reported in AIR 2003 SUPREMECOURT 1648, in fact the said Notifications also buttress the case ofthe plaintiffs. 50. As such I could see that there is perversity and non-application of law in rendering judgement by the first appellateCourt, wherefore, the judgement of the first appellate Court is setaside and the judgement of the trial Court is restored in a modifiedmanner as under:-The plaintiffs are declared to be the absolute owners of thesuit properties respectively, subject to the condition that they arenot entitled to put up in their respective plots, buildings, such as https://hcservices.ecourts.gov.in/hcservices/ nursery school for mentally retarded, creche and nursery school. Thegift deed dated 11.2.2005 executed by D2 in favour of D1 is declaredas null and void. The resolution No.15 passed by the first defendanton 28.9.2005, is invalid. The permanent injunction is granted asagainst the defendants to the limited extent that they are at libertyto move the appropriate authorities for taking steps to enforce theapproved plan in accordance with law and till then, they cannot oftheir own accord, disturb the respective peaceful possession of theplaintiffs over the suit properties. However, there is no order asto costs.51. I make it clear that with the help of this judgement anddecree, the plaintiffs cannot put to use the suit properties as theypleaded in their plaints, but it is for either the plaintiffs or theauthorities concerned to take legal steps to carry out the pith andmarrow, the warp and woof, the gist and kernal of the purpose forwhich the area was earmarked in the plan, subject to the currentLegislations and the subsidiary Legislations emerged, relating to theland use.MskSd/-Asst. Registrar//True Copy//Sub Asst. RegistrarTo1.The District Judge, Coimbatore.2.The Subordinate Judge, Coimbatore3.The Section Officer, VR Section, High Court, Madras.+ 3 ccs to Mr. T.R. Rajaraman, Advocate SR No.32943 + 3 ccs to Mr. T.V. Krishnamachari, Advocate SR No.32976+ 1 cc to Mr. R. Sivakumar Advocate SR No.33358BV(CO)SR/24.8.2009 judgement in S.A.Nos.63, 67 and 68 of 2009