R.N.Ramachandran v. M/s.River View Colony Low Income Group Flat Owners Welfare Association, Anna Nagar Chennai – 40

IN THE HIGH COURT OF JUDICATURE AT MADRAS DATE : 09.01.2008CORAMTHE HONOURABLE MR. JUSTICE S.J.MUKHOPADHAYAANDTHE HONOURABLE MS. JUSTICE K.SUGUNAW.A. NOS. 1455 & 1456 OF 2003R.N.Ramachandran.. Appellant in both appeals/ 5th Respondent in WP- Vs -1. M/s.River View Colony Low Income Group Flat Owners Welfare Association, Anna Nagar Chennai – 40... Respondents in WA 1455/03Writ Petitioner2. The Member Secretary Chennai Metropolitan Development Authority Chennai – 8.3. Commissioner of Corporation of Chennai, Chennai - 34. The Chairman Chennai Metro Water Supply & Sewerage Board, Chintadripet Chennai – 2.5. The Chairman Tamil Nadu Housing Board Nandanam, Chennai.... Respondents/ Respondents 1 to 4 in WP1. W.S.Jayadev2. R.Munikrishnan3. Pratap4. S.K.Urmila5. V.J.Thirumalai6. Dr. R.A.Venkatesan7. A.N.Moorthy8. Sampoornam Ramanathan https://hcservices.ecourts.gov.in/hcservices/

9. K.R.Viswanathan10. P.G.Ramalingam11. Dr. S.Sundaramoorthy12. Jayalakshmi Jeevendran13. M.J.Pandurangan14. Tamil Nadu Housing Board rep. by its Members Secretary Nandanam, Chennai – 35.15. Corporation of Chennai Rippon Buildings, Chennai – 3, rep. by its Commissioner16. The Chennai Metrowater Supply & Sewerage Board, Chintadripet Chennai – 2, rep. by its Managing Director.17. The Chennai Metropolitan Development Authority, Chennai rep. by its Member Secretary.. Respondents in WA 1456/03Writ Appeals filed against the order dated 3rd Jan., 2003,passed by learned single Judge in W.P. Nos.15041/00 and 14922/02.For Appellant: Mr. N.G.R.Prasad, for Mr.S.AyyathuraiFor Respondents: Mr. V.Selvaraju for R-1 in WA 1455/03 & RR-1 to 13 in WA 1456/03 Mr. J.Ravindran for R-2 in WA 1455/03 & R-17 in WA 1456/03 Mr. Mohd. Ghouse for R-3 in WA 1455/03 & R-15 in WA 1456/03 Mr.S.Rajendran for R-4 in WA 1455/03 & R-16 in WA 1456/03 Mr. K.Chelladurai for R-5 in WA 1455/03 & R-14 in WA 1456/03COMMON JUDGMENTS.J.MUKHOPADHAYA, J.Both the appeals having preferred by common appellant againstcommon judgment dated 3rd Jan., 2003, passed by learned singleJudge in two different writ petitions, they were heard togetherand disposed of by this common judgment. https://hcservices.ecourts.gov.in/hcservices/ The first writ petition, W.P. No.15041/00 was preferred bythe respondent, M/s.River View Colony Low Income Group Flat OwnersWelfare Association (hereinafter referred to as 'Association') fordirection on the Chennai Metropolitan Development Authority(hereinafter referred to as 'CMDA'), Corporation of Chennai andChennai Metrowater Supply and Sewerage Board (hereinafter referredto as 'Metrowater Supply Board') not to sanction the plan of theappellant, who was the 5th respondent in the said case for puttingup construction in plot No.3127-C, River View Colony, Anna Nagar,Chennai and to direct the Tamil Nadu Housing Board (hereinafterreferred to as 'Housing Board') to hand over possession of thesaid plot in favour of the association for maintaining the plot ascommon space.Another writ petition, W.P. No.14922/02 was preferred by therespondent W.S.Jayadev and 12 others, the respondents of the saidcase from interfering with their right to use plot No.3127-C,which, according to them, was shown as childrens' play space inthe plan exhibited by Housing Board when the LIG Flats of RiverView Colony was offered for sale to them. Prayer was also madefor maintenance of the existing sewerage line and water connectionon the said plot and for prohibiting the appellant, who was the 5threspondent in the said case from obtaining any planning permissionfor putting any construction over the said plot No.3127-C.2. Learned single Judge, by impugned common judgment dated 3rdJan., 2003, while came to a conclusion that the Housing Board wasdisentitled to sell the plot to private parties, observed that theappellant had conceded to take an alternative plot in an earliercase, which cannot be given a go-by on account of a compromise.Both the writ petitions were allowed with direction as sought forin those cases.3. From the pleading made by the parties and other records,the following facts emerge :-In between the year 1968-69, the Housing Board constructedfour low income blocks, each four blocks having four flats total16 allotteeswere allotted such flats in the year 1970. Accordingto association, portion of the land having 'Plot No.3127-C', wasmarked as childrens' play space. According to appellant, the landin question, which was open space, being a separate independentland abutting 120 feet road, had been assigned as plot No.3127-Cand proposed for auctioning. The proposal was approved by theState Government in their letter No.1034/NI/83-3 dated 21st April,1981 and directed the Housing Board to dispose of the said plotNo.3127-C by way of auction. An advertisement for public auctionof plot No.3127-C was made in 1982 in which the appellant took https://hcservices.ecourts.gov.in/hcservices/ part in the auction on 21st Feb., 1982 and being the highestbidder, the said plot was allotted on 7th May, 1982. The appellantdeposited the full cost of Rs.5,47,600/= on 30th Sept., 1985 andhaving obtained No Objection Certificate on 21st Feb., 1989, it wasconfirmed in his favour. No objection was raised by any person,including the association or its members, i.e., the writpetitioners. After about six years of public auction, the owners of theflat, D.Damodaran and 12 others, preferred a writ petitionNo.3284/88 for a writ of prohibition and grant of injunction inany way from interfering with the peaceful possession of plotNo.3127-C. In the said case, plea was taken that plot No.3127-Cforms part of common land of their block and left as an commonspace for LIG allottees. Therefore, the allotment of plotNo.3127-C has to be cancelled. Initially, interim injunction waspassed by this Court on 25th March, 1988 in W.M.P. No.4848/88against the proposed shifting of the drainage and water supplypipelines that were running in plot No.3127-C, which was madeabsolute on 21st July, 1988. In the meantime, the Housing Board,vide memo dated 16th Aug., 1989, issued general instructions to allallottees, who had not started construction even after lapse ofstipulated period as per the agreement conditions. A notice wasserved on appellant on 12th Dec., 1989, to start construction ofhis plot and bring upto basement level and he was informed that onfailure the allotment would be cancelled. In view of the absoluteinjunction granted in the writ petition, no objection certificatewas not issued to plot No.3127-C and, therefore, the appellant wasimpleaded in W.P. No.3284/88. This Court, after hearing theparties, vide order dated 20th March, 1990, directed the HousingBoard not to take any further action on the notice in respect ofplot No.3127-C pursuant to letter dated 12th Dec., 1989. The writpetition, W.P. No.3284/88 was finally dismissed on 17th June, 1991,with observation that the dispute in question is a matter of civilcourt and, thereby, remedy is before the civil court. The ownersof the flat preferred W.A. No.821/91 against the said judgment,but the same was also dismissed by Division Bench of this Court on11th July, 1991, having withdrawn by them. However, they chose toprefer a review application No.19/91 against the order dated 17thJune, 1991 in W.P. No.3284/88, which was also dismissed on 20thJuly, 1991. Against the above order of dismissal, W.A. No.1209/91was preferred by the allottees, which was also dismissed on 31stDec., 1991, whereinafter River View Colony Low Income Group FlatOwners Welfare Association preferred civil suit, C.S. No.1565/92,which has been transferred to Chennai City Civil Court andnumbered as O.S. No.9597/96. https://hcservices.ecourts.gov.in/hcservices/ The appellant preferred a writ petition, W.P. No.18840/92 fora direction on Housing Board, Metrowater Supply Board, Corporationof Chennai and CMDA to remove the obstruction, encroachment,including the service line from plot No.3127-C sold to him byHousing Board and to the Corporation to sanction planning permitfor construction of a building. In the said case, this Court,vide order dated 26th April, 1995, directed the Housing Board tooffer alternative site, more or equal to the site alreadypurchased by the appellant on or before 31st June, 1995. It isinformed that the then legal advisor of the Housing Board at thattime, submitted to the Court suggesting plot No.4415-A2 at AnnaNagar for allotment to the appellant. In view of the aforesaidsubmission, High Court passed orders on 1st Aug., 1996, asking theHousing Board to hand over plot No.4415-A2 to the appellant withinfour weeks. Housing Board, thereafter, filed an affidavit in W.P.No.18840/92 to pass an appropriate order since plot No.4415-A2does not come under Residential Use Zone, but it was rejected bythis Court on 30th Oct., 1996.Against the said order, Housing Board preferred W.A.No.135/97. The said appeal was disposed of on 14th April, 1997,allowing the appellant to submit a revised plan for putting upconstruction on plot No.3127-C without interfering with theexisting water and sewerage lines at the ground floor level anddirecting the appellant, Tamil Nadu Housing Board, to execute asale deed in favour of the appellant, entire consideration amounthaving paid. The Corporation of Chennai was directed to sanctionthe building plan. As per the above order, the Housing Boardexecuted sale deed in favour of the appellant on 3rd April, 1998 inrespect of plot No.3127-C.The association preferred another writ petition, W.P.No.15041/00 for direction on Corporation of Chennai, CMDA andMetrowater Supply Board not to sanction the plan. As statedabove, the other writ petition, W.P. No.14922/01, almost withsimilar prayer, has been preferred by W.S.Jayadev and 12 others,which has been disposed of by the impugned common judgment.4. The only question requires determination in this case iswhether in view of different orders passed by this Court from timeto time, including the order passed by Division bench dated 14thJuly, 1997 in W.A. No.135/97, and in view of execution of saledeed in favour of appellant pursuant to the Bench direction ofthis Court, learned single Judge should have entertained the writpetitions. https://hcservices.ecourts.gov.in/hcservices/

5. We have heard the learned counsel for the parties,including the counsel for the Housing Board and other Stateagencies.Learned counsel for the appellant submitted that similar writpetitions preferred by contesting respondents in the year 1988 asalso the writ appeals arising out of the order, both having beendismissed, the subsequent writ petitions for similar relief wasnot maintainable. Learned single Judge erred in allowing the writpetitions on the basis that the appellant has agreed for consentorder in W.P. No.18840/92. After approaching the High Court byfiling writ appeal, according to the appellant, he had agreed forconsent order in writ appeal filed by Housing Board, i.e., W.A.No.135/97 and at no point of time the appellant had given go-by tothe consent given by him. The respondents had no locus standi toclaim any relief in the writ petitions against the consent orderpassed by Division Bench in W.A. No.135/97.On the other hand, according to learned counsel for theassociation and other contesting respondents, the appellant cannotbe allowed to take a stand contrary to what he had agreed before aBench of this Court wherein he expressed his willingness to acceptplot No.4415-A2 and Housing Board was ready to hand over the site.The writ appeal as was preferred against the same was disposed ofwithout taking any steps to serve the contesting respondents inthe said appeal, namely, one of the resident of the colony and thesaid appeal was disposed of on compromise between the appellantand Housing Board and is not binding on others.6. From the impugned judgment it will be evident that learnedsingle Judge mainly noticed the stand as was taken by theappellant in his writ petition, W.P. No.18840/92, wherein theappellant had shown willingness to accept plot No.4415-A2, AnnaNagar, Madras. Having also noticed that the writ appeal preferredagainst the same was disposed of on compromise, learned singleJudge observed that apart from the merit in the claim of the writpetitioners, who are the contesting respondents in the presentappeal and the entitlement of the Housing Board to sell the saidplot to private parties and as the 5th respondent (appellantherein) had conceded before this Court to an alternative plot,held that those facts cannot be given a go-by on account of thealleged compromise between the Housing Board and the 5th respondentand allowed the writ petition. https://hcservices.ecourts.gov.in/hcservices/

7. It will be evident from the impugned order passed bylearned single Judge that the learned single Judge failed todiscuss the right of contesting respondents, i.e., the writpetitioners of the two writ petitions in question. No claim hasbeen made as to how the contesting respondents/writ petitionerslay their claim over plot No.3127-C. Admittedly, the said plotwas not allotted in favour of the association or any of itsmembers. There is nothing on the record to suggest that the saidplot No.3127-C was allotted as a playground for children of theLIG allottees/association or was shown as such in the layout planof the Housing Board.Learned single Judge failed to notice that the 13 members ofthe association out of 16, earlier moved before this Court forsimilar relief as sought for in the present two writ petitions inrespect of same plot No.3127-C. The said writ petition, W.P.No.3284/88 was finally dismissed and the appeal preferred againstthe same, i.e., W.A. No.829/91 was also dismissed. In the saidcase, this Court had observed that there being a disputed questionof fact, the remedy lies before civil court in a civil suit.We also noticed that learned single Judge, in fact, discardedthe compromise reached between the appellant and Housing Board inW.A. No.135/97 as illegal, though under the law, the said orderhaving reached finality between the parties, it was not open forlearned single Judge, that too in a writ petition under Article226 to make such observations. So far as plot No.4415-A2, AnnaNagar, Madras, is concerned, learned single Judge failed to noticethat though the appellant shown willingness to accept the saidplot, but Housing Board had not accepted the same and, therefore,preferred W.A. No.135/97, since plot No.4415-A2 does not comeunder Residential Use Zone. Learned single Judge erred inobserving that both appellant and Housing Board agreed for plotNo.4415-A2 and also failed to deliberate on the question whetherthe said plot No.4415-A2 could be allotted to the appellant as itdo not fall under the residential zone.8. Admittedly, pursuant to a Division Bench order, sale deedhas been executed in favour of the appellant in respect of plotNo.3127-C on 3rd April, 1998 on receipt of total considerationamount. The said deed was not challenged by any party before anycivil court of competent jurisdiction nor any declaration inrespect of said sale deed was sought for. Learned single Judgefailed to appreciate the said fact and had not deliberated as towhat will be the effect of the judgment on the sale deed alreadyexecuted on 3rd April, 1998, pursuant to Division Bench order ofthis Court. If the impugned judgment passed by learned singleJudge is affirmed, it will amount to nullifying a sale deed in a https://hcservices.ecourts.gov.in/hcservices/ case under Article 226 of the Constitution of India, which is notpermissible.9. For the reasons aforesaid, we set aside the common orderdated 3rd Jan., 2003, passed by learned single Judge in W.P.Nos.15041/00 and 14922/02. The writ appeals are allowed.However, there shall be no order as to costs.Sd/-Asst. Registrar./true copy/Sub Asst. Registrar.GLNTo1. The Member Secretary Chennai Metropolitan Development Authority Chennai – 8.2. Commissioner of Corporation of Chennai, Chennai - 33. The Chairman Chennai Metro Water Supply & Sewerage Board, Chintadripet Chennai – 2.4. The Chairman Tamil Nadu Housing Board Nandanam, Chennai.5. The Managing Director,The Chennai Metro water SupplySewerage Board, Chinradripet, Chennai-22 ccs to Mr.S. Ayyathurai, Advocate, Sr. 1717, 1715 W.A. NOS. 1455 & 1456 OF 2003CU (CO)kk 11/1