Madras High Court
Regal Palm Garden Apartment vs M/S. Ceedeeyeshousing And on 5 April, 2023
OSA.Nos.10 and 11 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 05.04.2023
CORAM :
THE HONOURABLE MR.JUSTICE R.MAHADEVAN
and
THE HONOURABLE MR. JUSTICE MOHAMMED SHAFFIQ
OSA.Nos.10 and 11 of 2022
and
CMP.Nos.6277 and 6280 of 2022
Regal Palm Garden Apartment
Owners Association (RPGAOA),
Represented by its Secretary,
No.383, Velachery, Tambaram Road,
Velachery, Chennai - 600 042. .. Appellant in both OSAs
Versus
1. M/s. CeeDeeYesHousing and
Infrastructure Private Limited,
(Formerly Cee Dee Yes Housing and Finance Ltd.,)
Rep.by its Managing Director,
No.42, 2nd Main Road, Gandhi Nagar,
Adayar, Chennai 600 020.
2. M/s. CeeDeeYesHealthCare Services Private Limited,
(Formerly Cee Dee Yes Standard Towers Pvt Ltd.,
Rep. by its Managing Director,
No.383, Velachery, Tambaram Road,
Velachery, Chennai - 600 042.
3. C.Devadasasundaram
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OSA.Nos.10 and 11 of 2022
4. M/ standard Fire Works Private Limited,
Represented by its Managing Director,
No.1/3, Thirthangal Road,
Sivakasai 626 123.
5. The Special Tahsildar (Land Acquisition - Highways),
Mambalam - Guindy Taluk,
Singaravelar Maaligai, Chennai 600 001.
6. The Tahsildar,
Velachery Taluk,
Velachery, Chennai 600 042.
7. The Chennai Metropolitan Development Authority,
Rep by its member Secretary,
Thala Muthu Natarajan House,
Gandhi Irwin Road, Egmore, Chennai - 8.
8. M/s. CeeDeeYes Property Services Private Limited
represented by its Director Brunth Sundar,
No.42 II Main Road Gandhi Nagar,
Adyar Chennai 20.
(Eighth respondent impleaded as per order
dated 16.12.2019 in Appln.Nos.8572 & 8573 of 2019
in C.S.No.535 of 2019. .. Respondent in both OSAs
Common Prayer: Original Side Appeals filed under Order 36, Rule 9 of
Original Side Rules read with clause 15 of the Letters Patent, to set aside the
common interim order and decree dated 06.09.2021 made in O.A.Nos.847 and
848 of 2019 in CS.No.535 of 2019 passed by this Court and allow the Original
Side Appeals.
For Appellant : M/s. Chitra Sampath, Senior Advocate
for Mr.S.Namasivayam in both OSAs
For R1 to R3 : Mr.Kabir, Senior Advocate
for Mr.T.Jayaraman in both OSAs
For R4 : Mr.A.Sivaji in both OSAs
For R5 & R6 : Mr.R.Sidharth,
Government Advocate in both OSAs
For R7 & R8 : No appearance
https://www.mhc.tn.gov.in/judis
OSA.Nos.10 and 11 of 2022
COMMON JUDGMENT
(Judgment of the Court was delivered by R. MAHADEVAN, J.)
The present Original Side Appeals have been preferred by the
appellant/plaintiff against the common order dated 06.09.2021 passed by the
learned Judge in O.A.Nos.847 and 848 of 2019 in CS.No.535 of 2019.
2.The necessary facts leading to the filing of these appeals would run
thus:
2.1. On 28.03.2001, an MOU was entered into among the first
respondent represented by the third respondent and the fourth respondent, for
development of 6.86 acres of land owned by the fourth respondent in
Velachery in three different parcels. Subsequently, on 29.05.2001, a deed of
reconstitution was executed by the fourth respondent and the 3 parcels were
clubbed into one composite land parcel. Vide letter No.C3/21795/2001 dated
02.05.2002, the seventh respondent / CMDA granted planning permission in
favour of the fourth respondent for construction of building with two entries /
gates situated on Velachery-Tambaram Main Road to the composite complex.
Out of the primary residential zone of the composite land parcel, a gift deed to
an extent of 29916 sq.ft was executed by the fourth respondent in favour of the
Corporation of Chennai. On 16.05.2002, building permission was granted by
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OSA.Nos.10 and 11 of 2022
the Corporation of Chennai. Thus, according to the approved plan, the OSR
space was on the eastern side of the combined extents and the commercial
block was situated abutting the Velachery-Tambaram Main Road and the
remaining three sides were surrounded by pathway leading to the residential
complex.
2.2. From December 2002 and thereafter, the members of the
appellant Association / their predecessors-in-interest, entered into sale-cum-
construction agreements, wherein the extent conveyed to the individual buyers
is mentioned as undivided share of the entire extent of 6.86 acres comprised in
S.Nos.329, 328/2, 327/1, 256/2, 325/1, 325/2 and 325/2 with Velachery-
Tambaram Road as the Western boundary. However, in the sale deeds, the
third respondent replaced the Velachery-Tambaram Road with S.No.329 as the
western boundary and the larger extent as 5.50 acres, in violation of the
planning permission. In 2003, the fourth respondent had conveyed an extent of
48,000 sq.ft. in 24 sale deeds of 2400 sq.ft. each in S.No.329 to the second
respondent with Velachery-Tambaram Road as western boundary. On
06.06.2005, the balance extent of 10156 sq.ft which forms the pathway to the
residential complex, in S.No.329, was purchased from the fourth respondent
by the eighth respondent viz., M/s.Cee Dee Yes Property Services Private
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OSA.Nos.10 and 11 of 2022
Limited. The respondents 1 to 4 also built an illegal wall blocking part of
ingress and egress to the residential complex.
2.3. In 2014, the appellant Association was formed after duly electing
its office bearers. As the members of the appellant questioned the violation of
the planning permission, a MOU was entered into, among the eighth
respondent, third respondent and appellant on 16.05.2015 and as per the same,
the third respondent agreed to transfer the undivided share of land in S.No.329
measuring an extent of 10156 sq.ft. in favour of the appellant, but there was no
mention about time limit or consideration. Subsequently, after exchange of
some communications, the third respondent unilaterally cancelled the said
MOU on 11.01.2017. Aggrieved by the same, the appellant preferred
CS.No.535 of 2019, for mandatory injunction and permanent injunction.
2.4. Since the respondents have attempted to subdivide and alienate
the suit schedule property to the third party, the appellant filed OA Nos.847
and 848 of 2019 in CS.No.535 of 2019 seeking interim injunctions restraining
the respondents from alienating or encumbering the suit schedule property;
and from subdividing the suit schedule property by metes and bounds and
maintain the same as per the composite plan granted by the seventh respondent
on 02.05.2002 as ordered in A.No.2810 of 2020 in CS No.535 of 2019.
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OSA.Nos.10 and 11 of 2022
However, by order dated 06.09.2021, the learned Judge dismissed both the
applications. Therefore, the present appeals by the appellant / plaintiff.
3.The learned counsel for the appellant submitted that as per the CMDA
approved plan, the extent of 10156 sq.ft of land in S.No.329 is the only
pathway leading to the residential complex of 412 families consisting of more
than 2000 residents, including children and senior citizens; and if the suit
schedule property is allowed to be dealt with as a private property, the
residents of the entire apartment complex will be deprived of ingress and
egress to the road. Without considering the same, the learned Judge erred in
dismissing the applications, by the order impugned in these appeals. It is also
submitted by the learned counsel that the learned Judge erroneously raised the
issue of maintainability of the suit, when the application seeking rejection of
plaint was already dismissed. Further, ignoring the fact that the appellant
Association came into existence only in 2014, the learned Judge erred in
observing that the reconstitution deed dated 29.05.2001 is fabricated by the
appellant. With these submissions, the learned counsel prayed to set aside the
order of the learned Judge and allow these appeals.
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OSA.Nos.10 and 11 of 2022
4.On the above submissions, we have heard the learned counsel
appearing for the respective respondents and also perused the documents
enclosed in the typed set of papers.
5.It could be seen that with respect to the suit schedule property, there
were various agreements and undertakings among the parties, the violation of
which, has raised the present dispute. This court is of the opinion that such
disputed questions of fact cannot be adjudicated in these appeals. Hence,
considering the facts and circumstances of the case and as agreed to by the
learned counsel appearing for both sides, we direct the Court concerned, where
the civil suit is pending, to dispose of the case in CS.No.535 of 2019, as
expeditiously as possible, in any event, preferably within a period of six
months from the date of receipt of a copy of this order. Till such time,
status quo as obtaining today, shall be maintained by both sides.
6.Both the original side appeals stand disposed of, in the above terms.
No costs. Consequently, connected miscellaneous petitions are closed.
[R.M.D., J.] [M.S.Q., J.]
av 05.04.2023
Index : Yes / No
Internet : Yes / No
https://www.mhc.tn.gov.in/judis
OSA.Nos.10 and 11 of 2022
R. MAHADEVAN, J.
and
MOHAMMED SHAFFIQ, J.
av
OSA.Nos.10 and 11 of 2022
05.04.2023
https://www.mhc.tn.gov.in/judis
