Madras High Court
Abirami Willow Creek Flat Owners vs The Member Secretary on 12 November, 2021
W.P.No.24194 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 12.11.2021
CORAM:
THE HONOURABLE MR.JUSTICE R.SURESH KUMAR
W.P.No.24194 of 2021
Abirami Willow Creek Flat Owners
Welfare Association,
Rep. by its Secretary, K.Neethi Cholan
Having Office at
No.H-11, Abirami Willow Creek Flat Owners
Welfare Association,
South Avenue, Kamaraj Nagar,
Thiruvanmiyur, Chennai - 600 041. .. Petitioner
Vs
1.The Member Secretary,
Chennai Metropolitan Development Authority,
Thalamuthu Natarajan Maaligai,
1, Gandhi Irwin Road, Egmore,
Chennai - 600 008.
2.Savithri Sundari
3.Dr.G.Jayamohan
4.J.Meena .. Respondents
Prayer: Petition filed under Article 226 of the Constitution of India
praying for issuance of a Writ of Mandamus directing the respondent to
consider the representation dated 14.12.2020 and take appropriate action
in accordance with law.
https://www.mhc.tn.gov.in/judis
1/9
W.P.No.24194 of 2021
For Petitioner : Mr.Ralph V.Manohar
For 1st Respondents : Mrs.Malavizhi Udhayakumar
Standing Counsel for CMDA
ORDER
The prayer sought for herein is for a writ of mandamus directing
the first respondent to consider the representation dated 14.12.2020 and
take appropriate action in accordance with law.
2. The petitioner on 14.12.2020 has given a representation to the
official respondents wherein the petitioner has stated the following:
"Sub: Request for demolition of unauthorized structures in
the common area of the premises
Ref: Approved Plan of CMDA dated 24.08.2010 bearing
permit number B /spl.Bldg/316 Ato D/2010
With reference to the above mentioned plan, it is
requested that immediate action be taken to demolish all
unauthorized structures in the common area of the above
premises. It is also informed that a pathway has been built in
the front of the building leading to a staircase to the first
floor only, which is unauthorized and not as per approved
plan. This is built in the common area of the flat and not as
per the approved plan. Further, in common stair case leading
to the terrace, unauthorized structures is built in the first
floor of the building restricting free movement and in case of
emergency situations like a fire accident this would
definitely hamper escape and rescue efforts.
https://www.mhc.tn.gov.in/judis
W.P.No.24194 of 2021
In this stilt of the building where car parking is
situated, a major portion of the same has been
unauthorisedly occupied by a few of the owners causing
inconvenience to majority of others. Also the common area
in the front of the building has been completely blocked by
constructing two walls unauthorized restricting the free
movement of occupants of the flat and their vehicles. Again
this would hamper the free movement of Ambulance/Fire
Engine in and out of the flat in case of any big emergency.
In view of the above it is humbly requested that
measures be taken on a war footing by the CMDA to
immediately to inspect the premises and proceed to
demolish/remove all unauthorized constructions for the
welfare of all the occupants of the building.
Thanking you
Yours sincerely
Secretary
Abirami Willow Creek-Flat Owners Welfare Association"
3. Since the said representation has not been considered, according
to the petitioner, by the first respondent i.e., Member Secretary, Chennai
Metropolitan Development Authority, he has moved the present writ
petition.
4. Heard the learned counsel appearing for the petitioner, who
would submit that, the first respondent is a Planning Authority and as per
the plan approval given by the Planning Authority, the apartment in
https://www.mhc.tn.gov.in/judis
W.P.No.24194 of 2021
question has been constructed where the members of the petitioner have
purchased respective flats and they are residing. Insofar as the said
apartment is concerned, the private respondents i.e., respondents 2 to 4
also having their flats and insofar as the alleged common area of the
apartment is concerned, according to the petitioner, though it belongs to
everyone of the apartment, i.e., every owner of the apartment, who are
the members of the petitioner Association, the private respondents are
trying to utilise some portion of the common area as if it is the exclusive
property with exclusive right.
5. In this regard, though complaints have been given, nothing was
forthcoming and in this regard, according to the petitioner Association,
since the first respondent Planning Authority can take action against the
private respondents for violating the plan condition or plan approval,
when such a representation has been given since they have not come
forward to consider the same, in order to redress such grievance, the
petitioner can move this writ petition. Accordingly, this writ petition has
been filed, hence, he seeks indulgence of this Court.
https://www.mhc.tn.gov.in/judis
W.P.No.24194 of 2021
6. However, Mrs.Malarvizhi Udhayakumar, learned Standing
Counsel, who, takes notice for the 1st respondent, on instruction, would
submit that, it is purely an inter se dispute between the flat owners of the
apartment concerned where even though a plan approval has been given,
where if there has been any violation of construction in the plan
approval, that alone can be considered by the Planning Authority under
the provisions of the Town and Country Planning Act. However, insofar
as the utility of the common space or space earmarked or allotted,
subsequent to any of the inmate of the apartment is concerned, that may
be gone into only by exploring the civil right of each of the parties or
each of the owner of the apartment. Therefore, that kind of issue can only
be resolved by the parties concerned by approaching the competent Civil
Court.
7. The learned Standing Counsel for the 1st respondent would also
point out that, in this regard, the private respondents already had
approached the Civil Court and filing a civil suit in O.S.No.3575 of 2021
on the file of the XVI Assistant City Civil Court, Chennai where they
sought for a decree and judgment to declare that the plaintiffs i.e., the
https://www.mhc.tn.gov.in/judis
W.P.No.24194 of 2021
private respondents herein are exclusively and absolutely entitled to use
the schedule-D mentioned areas as per the terms of the Deed of Handing
over agreement dated 05.01.2011 executed by 11th defendant therein to
Dr.Arunachalam and as per the Deed of Handing Over agreement dated
01.08.2011 executed by the 11th defendant in the suit to the 2nd plaintiff
and also seek for a permanent injunction restraining the defendants 1 to
10, who are none other than the members of the petitioner's Association,
from using the space exclusively allotted and belonging to the plaintiffs
morefully described in schedule-D.
8. By relying upon this prayer sought for in the suit filed by the
respondents, the learned Standing Counsel for the 1st respondent would
point out that, therefore exactly the grievance of the petitioner if any can
very well be espoused and decided by the Civil Court in the suit where
all the members of the petitioner Association have been arrayed as
defendants. Therefore, the petitioner can very well pursue the said suit by
making suitable defence therein and hence, the learned Standing Counsel
would submit that the present writ petition cannot be maintained before
this Court.
https://www.mhc.tn.gov.in/judis
W.P.No.24194 of 2021
9. I have considered the rival submissions made by the learned
counsel appearing for the parties and have perused the materials placed
before this Court.
10. As has been rightly pointed out by the learned Standing
Counsel appearing for the 1st respondent, the issue raised in the writ
petition cannot be resolved by this Court while exercising its jurisdiction
under Article 226 of the Constitution of India.
11. Since it is a complete question of fact as to who will be the
owner or who will be entitled to enjoy the space concerned, which is in
dispute, which has been shown in schedule D of the suit which had been
filed by the private respondents against the members of the petitioner's
Association before the competent Civil Court and that issue can very
well be resolved and decided after having appreciated the evidence to be
let in in this regard by both the parties before the competent Civil Court.
12. In that view of the matter, this Court feels that since it is a
settled proposition of law that mere question of fact that too
https://www.mhc.tn.gov.in/judis
W.P.No.24194 of 2021
establishment of civil right cannot be gone into by a Writ Court while
exercising the writ jurisdiction under Article 226 of the Constitution of
India and in this regard, the parties can be relegated to the Civil Court by
filing appropriate civil proceedings, which, in fact, the private
respondents have already undertaken, this Court has no hesitation to hold
that the present writ petition cannot be entertained by this Court at this
juncture. In that view of the matter, the present writ petition is devoid of
merits, hence, it is liable to be dismissed, accordingly, it is dismissed.
However, there shall be no order as to costs.
12.11.2021
Index : Yes / No
Speaking Order : Yes/No
Sgl
To
The Member Secretary,
Chennai Metropolitan Development Authority,
Thalamuthu Natarajan Maaligai,
1, Gandhi Irwin Road, Egmore,
Chennai - 600 008.
https://www.mhc.tn.gov.in/judis
W.P.No.24194 of 2021
R.SURESH KUMAR, J.
Sgl
W.P.No.24194 of 2021
12.11.2021
https://www.mhc.tn.gov.in/judis
