Madras High Court
M/S. V.N.R. Homes Private Limited vs Sky City Owners Association on 5 November, 2024
C.R.P.(PD)No.1491 of 2024
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 05.11.2024
CORAM :
THE HONOURABLE MR.JUSTICE V. LAKSHMINARAYANAN
C.R.P.(PD)No.1491 of 2024
and C.M.P.No.8024 of 2024
M/s. V.N.R. Homes Private Limited,
Represented by its Whole-time Director,
Mr.Raghupathy, No.11/32,
Lakshmi Talkies Road,
Shenoy Nagar, Chennai-30. .. Petitioner
Vs
1. Sky City Owners Association,
Represented by its General Secretary,
Mr.G.M.David Raj,
Sky City Apartments, Vanagaram-Ambattur Road,
Adayalampattu, Chennai-600 005.
2. The Secretary,
Rural Development and Local Administration,
Secretariat, Fort St. George,
Chennai-600 009.
3. The Commissioner,
Villivakkam Panchayat Union,
Camp at Ambattur Panchayat Union Complex,
CTH Road, Ambattur, Chennai-600 053.
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C.R.P.(PD)No.1491 of 2024
4. Tulive Developers Limited,
Represented by its Whole-time Director
Mr.Vaidyanathan Suresh,
21/22, Loha Bhavan, P.D.Mello Road,
Mumbai City, Mumbai,
Maharashtra – 400 009.
5. The Member-Secretary,
CMDA, Thalamuthu Natarajan Maligai,
Egmore, Chennai-600 008.
6. The Secretary, Revenue Department,
Secretariat, Fort St. George,
Chennai-600 009.
7. The District Collector,
Collectorate,
Thiruvallur – 602 001.
8.The Secretary,
Housing and Urban Development Department,
Fort St. George, Chennai-600 009. .. Respondents
PRAYER: Civil Revision Petition is filed under Article 227 of the
Constitution of India, to strike off the plaint in O.S.No.35 of 2024 on the
file of the Principal District Munsif Court at Poonamallee as barred under
the provisions of Town and Country Planning Act, 1971 and an abuse of
process of Court.
For Petitioner : Mr.K.V.Babu
for Ms. N.Asmitha
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C.R.P.(PD)No.1491 of 2024
For R1 : Mr.S.Silambanan, Senior Counsel
for Mr.D.Muthukumar
For R2, R3,
R6 to R8 : Dr.S.Suriya, AGP (CS)
For R5 : Mrs.Veena Suresh
ORDER
This civil revision petition seeks to strike off O.S.No.35 of 2024 on
the file of the Principal District Munsif Court at Poonamallee.
2. The civil revision petitioner is the 8th defendant in the suit.
O.S.No.35 of 2024 is a suit filed by the 1st respondent herein for the
following reliefs:
“(a) To adjudge the Gift Deed dated 20.03.2007 registered as
Document No.617 of 2007 in Book 1 of SRO, Chennai South Joint II as
null and void and inoperative and order it to be delivered up and
cancelled.
(b) To declare that the suit property is not a public road and to
pass a consequential mandatory injunction directing the 6th defendant to
make an entry in the relevant records accordingly and
(c) For permanent injunction restraining the defendants, its
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officials, agents and men from interfering with the peaceful possession
and enjoyment of the suit property by the plaintiff and the residents of the
apartment project.
(d) for cost of the suit.”
3. The undisputed facts are the 3rd defendant namely, one Tuliv
Developers Limited had approached the 4th defendant/CMDA for the
purpose of developing the properties situated at S.Nos.92/1, 92/2, 92/3,
93/1, 93/2, 93/3, 94/1, 94/2B1, 94/2B2, 94/3A2, 94/3B3, 94/4, 94/5,
94/6, 95/1B, 95/2A, 95/2B, 97/6 & 101/2A2 at Adayalambattu Village,
Ambattur Taluk, as a group development. The 4th defendant imposed a
condition for the purpose of approval of the group development, the 3rd
defendant would have to execute a gift deed of the properties situated to
an extent of 1873.33 sq.mtrs. in S.Nos.92/2 part, 93/2 part, 94/3B3 part
and 94/5 part of the aforesaid village with specified boundaries in favour
of the Commissioner, Villivakkam Panchayat Union. Being a group
development, the CMDA felt that there must be an access for the
properties situated on the southern and northern side of the properties
through an access road. Hence, the condition for execution of the gift
deed is the road so created was to join the Ambattur - Vanagaram road.
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Accepting the condition, the 3rd defendant executed a gift deed on
20.03.2007. It was presented for registration on the file of the Joint Sub-
Registrar – II, Saidapet. The said document has also been given the
registration number of 617/2007. On the basis of the gift deed and other
compliances, the 3rd defendant laid out a public road and thereafter,
developed the property and had put up apartments under the group
development. The plaintiff/1st respondent herein is the owner's
association.
4. The cause of action for the suit is that, the 8th defendant whose
property is situated on the eastern side of the 33 feet road, which had
been gifted under the aforesaid document, proposed to develop his
property for another group development. It is the plea of the plaintiff that
the 8th defendant cannot utilise the road gifted to Villivakkam Panchayat
Union. Hence, it presented the suit for the aforesaid reliefs.
5. Aggrieved by the presentation of the plaint, the 8th defendant has
preferred this revision.
6. According to Mr.K.V.Babu, the suit is an abuse of process of
law as it seeks to set aside a gift deed on the basis of which permission
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was granted by CMDA and on the basis of the said permission, flats were
constructed and sold to the members of the plaintiff association. He
further urges that the suit is barred by virtue of Section 101 of the Tamil
Nadu Town and Country Planning Act, 1971.
7. Per contra, Mr.S.Silambanan, learned senior counsel for
Mr.D.Muthukumar for the 1st respondent, pleads that the revision under
Article 227 of the Constitution of India is not maintainable and even if
there is no cause of action, the appropriate remedy for the 8th defendant is
to move an application under Order VII Rule 11 of the Code of Civil
Procedure (C.P.C.) and not to approach this Court directly invoking
Article 227 of the Constitution of India.
8. I have carefully considered the submissions of Mr.K.V.Babu
and Mr.S.Silambanan.
9. The undisputed facts are that the properties which have been
mentioned above belong to one J.Rajkumar Balsingh and
T.T.Varadarajan. They had appointed one Kerry Jost Engineering
Limited situated in Mumbai as their power agent. The said Kerry Jost
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Engineering Company was re-named as Tulive Developers Limited, the
3rd defendant. The purpose of executing the power was to develop the
aforementioned properties into a group development that is for
construction of multistorey apartments. It is not in dispute that about 452
apartments were also constructed. The 3rd defendant had approached the
planning authorities under the Town and Country Planning Act for the
purpose of obtaining lay out approval as well as permission to put up the
multistorey constructions. As a condition for the said approvals, the 4th
defendant/CMDA called upon the power agent to execute a gift deed in
favour of the Commissioner, Villivakkam Panchayat Union. The purpose
of the gift deed was to transfer the title from the original owners
Rajkumar Balsingh and T.T.Varadarajan, with respect to the area, set
apart as a road. The power of attorney also executed the document and
the road was also formed.
10. A very perusal of the gift deed shows that it had been conveyed
for the purpose of enjoyment by the public at large. After complying with
the requirements of the Town and Country Planning Act and regulations
made thereunder, constructions were made and individual apartments
were sold to the owners. The owners have formed an association called
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Sky City Owners Association, the plaintiff. The road has been in
existence and in enjoyment of the public from 2007 till date. The 8 th
defendant is the owner of the properties situated to the eastern side of the
road desirous to develop his property into multistorey apartments and he
had made out an application for approval.
11. A similar condition was imposed on the 8th defendant. He has
also executed a gift deed in favour of Villivakkam Panchayat Union. This
was on 16.10.2023. This document too is registered in Document
No.2864 of 2023 on the file of the very same Sub-Registrar at Saidapet.
In the gift deed that has been executed by the 8th defendant in favour of
Villivakkam Panchayat Union, he has shown the access for his property
as the 33 feet road, which had been gifted by the 3rd defendant in favour
of the 2nd defendant. This is because, on and from the time of the
execution of the gift deed, the road which had been laid out vests with
the local body for the purpose of maintaining the same for the beneficial
enjoyment of the public.
12. Feeling aggrieved by the fact that the 8th defendant has shown
the public road that had been dedicated by their vendor in favour of the
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2nd defendant/Panchayat Union, the present plaint has come forth before
the learned Principal District Munsif at Poonamallee.
13. Before I see whether there is any cause of action for the suit as
if it is barred, I have to see whether a revision under Article 227 of the
Constitution of India is maintainable. This is because Mr.S.Silambanan,
as pointed out above, has taken a plea that since there is an alternate
remedy for the 8th defendant, that remedy has to be opted before filing
this revision.
14. Perhaps his inspiration seems to be a judgment of the Supreme
Court in Virudhunagar Hindu Nadargal Dharma Paribalana Sabai &
others v. Tuticorin Educational Society & others, AIR ONLINE 2019
SC 2691.
15. It is beyond cavil that this Court has the power under Article
227 of the Constitution of India to keep the Courts subordinate to it
within their bounds. In case a Court exceeds its jurisdiction or if it finds
that the proceedings are in the nature of an abuse of process of law or are
totally bereft of cause of action, this Court always retains jurisdiction to
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strike off the plaint, if it suffers from the aforesaid vises. The principle of
pushing a party to an alternate remedy is a self imposed restriction and it
need not be applied across the board. It is neither a strait jacket formula
nor is the power under Article 227 a procrustean bed to knock off the
legs or the head, if they do not fit the bed.
16. If I were to come to a conclusion that the suit is an abuse or is
totally bereft of the cause of action, I certainly retain the jurisdiction to
strike off the plaint. In fact in Virudhunagar Hindu Nadargal Dharma
Paribalana Sabai, the Supreme Court had taken a view that “a mere
total bar”, it did not hold that there exist a total bar for maintaining a
revision under Article 227 of the Constitution of India. I also have to see
the facts of the aforesaid case, which lead to laid down the dictum.
17. The matter went up before the Supreme Court, on account of
the fact, a learned single Judge of this Court interfered with an order of
the Trial Court when a civil miscellaneous appeal under Order XLIII Rule
1 of the Code of Civil Procedure was pending before the appellate Court.
It was under those circumstances, the Supreme Court took a view that
when one party has already availed the remedy available under the Code
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of Civil Procedure, this Court should not normally interfere with the said
order and ought to have delegated the civil revision petitioner to pursue
the remedy of the appeal that he had preferred. In any event, as pointed
out above, the Court did not say there is absolute prohibition of the Court
to entertain the revision under Article 227. I should add here that my
brother Justice Mr.D.Bharatha Chakravarthy, after a detailed analysis of
all the previous case laws, has held that if compelling reason exists
considering the urgency or if relegating the parties to the Trial Court, the
Trial Court would result in injustice, this Court can exercise the power to
strike off the plaint. See, N.Periyasamy v. Mohamed Bilaldeen and
others, C.R.P.(MD)No.671 of 2022, dated 23.08.2024.
18. Putting this aspect behind me, I now turn to see whether the
suit is an abuse of process of law. The discussion of the facts as aforesaid
would point out that the members of the plaintiff association obtained a
right over the suit scheduled mentioned property only from the 3rd
defendant. The 3rd defendant was the agent of the original owners. The
original owners through the agent had executed a document in favour of
the 3rd defendant conveying a portion of their land for creation of a
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public road. This was a condition precedent for development of their
property. A purchaser from the 3rd defendant cannot have a better right
than the 3rd defendant himself. When the 3rd defendant had decided
along with the principals namely, the original owners, to dedicate a
portion of the land for the purpose of enjoyment by the public, the
subsequent purchasers cannot claim higher right and seek to set aside the
very document on the basis of which the planning approval was granted
for putting up their flats.
19. In fact, I pointed out to Mr.S.Silambanan that if the suit were
to be decreed, then the entire edifice of planning approval and subsequent
construction would come crashing to the ground. Curiously enough, the
second prayer of the plaint seems to be that the road which had been
dedicated to the public as early as 2007 should not be used by the public.
This is clear from the prayer that he seeks for declaration that the suit
property is not a public road.
20. Once the road is dedicated to the public, it is only the State
Government under the erstwhile, Tamil Nadu District Municipalities Act
which had the power to close the public road. That too required a
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resolution of the concerned local body and under exceptional
circumstances. A Civil Court does not possess the power to declare a road
dedicated as a public road ceases to be one. The power of declaration
under Section 34 of the Specific Relief Act cannot be utilised contrary to
a statutory declaration that has been made by the legislature. When a
property has been dedicated as a public road in 2007, a Civil Court
cannot declare it as a private one and that too, after 17 years have gone
by.
21. The very prayer that has been sought for, indirectly
contravenes Section 101 of the Town and Country Planning Act. Under
Section 101 of the Town and Country Planning Act, there is a bar on the
jurisdiction of the Civil Court with respect to any decision or order of the
Tribunal, the Government, planning authority or any other authority
created under the Town and Country Planning Act. It was the decision of
the CMDA, an authority under the aforesaid Act, that if the 3rd defendant
and their principals want to develop their property, they have to gift a
portion of 1873.33 sq.mtrs as a public road. This decision was accepted
by the predecessors in title of the members of the plaintiff association.
This decision was not challenged by the owner or the 3rd defendant. In
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fact, they implemented it and derived benefits from the same.
22. I should add here that the association is not the owner even an
inch of the land over which the construction stands today. Hence, it has
no standing to maintain the suit. It represents the interest of the owners
and as pointed out above, the owners of the apartments cannot have
better right than the owners or the developer. Having agreed to the
conditions laid down for the development of the land, the predecessor in
interest of the plaintiff's members had executed the document. When the
members of the plaintiff association purchased the property knowing
pretty well that their predecessors had set apart an area for a public road,
today they cannot turn around and plead that it should remain a road, but
the public do not have the right of usage. Finding the plaintiff cannot
directly challenge the proceedings of the CMDA, it has indirectly sought
for setting aside the gift deed while seeking to retain the benefit of the
planning permission. The plaintiff cannot be permitted to eat the cake
and have it too. The aforesaid discussion shows that the plaint itself
statutorily barred by virtue of Section 101 of the Town and Country
Planning Act, 1971.
23. In fact the Supreme Court had an occasion to deal this very
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issue of whether a party having dedicated the property for the benefit of
the public can turn around and seeks for its cancellation. After a detailed
analysis of all the previous case laws, the Hon'ble Mr.Justice K.M.Joseph
held that once the property is required to be maintained as per the
planning permission, neither the owner nor the Town and Country
Planning Authority are entitled to change its character. This view was
taken in Association of Vasanth Apartments' Owners v. V.Gopinath &
others, 2023 SCC OnLine SC 137. The admitted document namely,
Document no.617/2007 dated 20.03.2007 has created a public road over
which every member of the public has a right of access. It cannot be
usurped by the plaintiff or its members under the garb of presenting the
present suit.
24. I also have to recollect at this place the settled position of law
that an owner of a property abetting a public road has a right over every
point of that road which touches his property. Therefore, the 8 th defendant
is lawfully entitled to have an access since the public road created by the
3rd defendant by way of a gift to the 2nd defendant, ends with his property.
25. That being the position of law, I do not find the plaintiff has
the locus and there is no cause of action for the present suit. In addition,
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the reliefs sought for are hit by Section 101 of the Town and Country
Planning Act.
26. In the light of the above discussions, the civil revision petition
stands allowed. The learned Principal District Munsif at Poonamallee is
requested to record this judgment and remove the suit from its file. No
costs. Consequently, connected miscellaneous petition is closed.
05.11.2024
Index:Yes/No
Speaking order/Non-speaking order
Neutral Citation:Yes/No
kj
To
1. The Principal District Munsif at Poonamallee.
2. The Secretary,
Rural Development and Local Administration,
Secretariat, Fort St. George,
Chennai-600 009.
3. The Commissioner,
Villivakkam Panchayat Union,
Camp at Ambattur Panchayat Union Complex,
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CTH Road, Ambattur, Chennai-600 053.
4. The Member-Secretary,
CMDA, Thalamuthu Natarajan Maligai,
Egmore, Chennai-600 008.
5. The Secretary, Revenue Department,
Secretariat, Fort St. George,
Chennai-600 009.
6. The District Collector,
Collectorate,
Thiruvallur – 602 001.
7.The Secretary,
Housing and Urban Development Department,
Fort St. George, Chennai-600 009.
V. LAKSHMINARAYANAN,J.
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kj
05.11.2024
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