S. Shargunam vs The Executive Engineer and Administration Officer and Others

R. Banumathi, J.—Petitioner has filed these Writ Petitions seeking Writ of Mandamus directing the Respondents 1 to 4 to remove the illegal

encroachment made in the common area around MIG Block, first phase which is especially located in Flats of M-87, M-91, M-92, M-95, M-98

and M-88 of Ellis Nagar Housing Unit, Madurai by late Shankar Rao, the lessee of Flat No. M-88 through the 8th Respondent and also to direct

the Respondents 5 and 6 to disconnect the Service Connection Nos. FA-57, FA-58 and FA59 standing in the name of 8th Respondent.

Each MIG Block consisting of 24 flats and Petitioner has been allotted Flat No. 92 on the first floor of MIG Block and Flat No. M-88 was

allotted to one Shankar Rao who is the father of 7th Respondent. The said Shankar Rao died in the year 1997 and as legal heir of Shankar Rao,

7th Respondent is entitled to get transfer of benefit under the said scheme from Respondents 1 and 2 in respect of Flat No. M-88 situated in the

ground floor of MIG Flats in the first phase (Ward No. 29) of Ellis Nagar Housing Unit.

Case of Petitioner is that as per the layout, Housing Board has left some open space around each MIG Block consisting of 24 Flats with an

intention of providing them uninterrupted light, unpolluted air for all the 24 allottees. Grievance of Petitioner is that the said common space is now

being encroached by the Respondents 7 and 8 [8th Respondent being the tenant of 7th Respondent]. According to Petitioner, the common space

is meant for common enjoyment of all 24 allottees of that block. Further case of Petitioner is that inspite of repeated representation and inspite of

communication from the Housing Board, the Corporation has not taken steps to remove the encroachment.

We have heard Mr. Rakee Sridharan, learned Counsel appearing for the Petitioner. We have heard Mr. Thilkkumar, learned Counsel appearing

for Respondents 1 and 2. We have also heard Mr. M. Ravishankar, learned Counsel appearing for Respondents 3 and 4.

Learned Counsel for Petitioner has drawn our attention to the number of communication sent by the Housing Board to the Corporation of

Madurai requesting the Corporation to remove the illegal constructions made by Shankar Rao. Learned Counsel for Petitioner has also drawn our

attention to the communication of the Housing Board dated 05.06.2009 addressed to N.S. Shankar Rao calling upon him to remove the illegal

constructions put up by him.

Learned Counsel for Corporation has submitted that the common space left by the Housing Board is meant for common enjoyment of 24

allottees and that all the allottees have got undivided common share and common right and the property not being vested with the Corporation nor

being a public road, the Corporation cannot proceed to remove the illegal constructions. Learned Counsel for Corporation has also drawn our

attention to the communication dated 03.09.2009 sent by the Assistant Commissioner of Madurai Corporation to the Petitioner informing the same

and also informing about the pendency of the Civil Suit in O.S. No. 302/2008 on the file of Additional District Munsif, Madurai Town.

As rightly submitted by the learned Counsel for the Corporation, the common space left around the Flats is meant for common enjoyment of the

allottees. In Paragraph (4) of the Affidavit, the Petitioner himself has clearly averred that ""open space given in the first phase of MIG Block (Ward

No. 29) is for the common enjoyment of 24 allottees of that block...is in the common possession and enjoyment of by all the allottees of that

block."" Petitioner has further averred that each and every allottees of the flats are entitled to use the same in common without making claim for

personal possession.

The property so earmarked for the common enjoyment of all the allottees is not vested with the Corporation nor with the Housing Board. On

the other hand, all the allottees have undivided common share and common right in the said common space. In fact the Petitioner himself earlier

filed suit in O.S. No. 302/2008 on the file of Additional District Munsif, Madurai Town for mandatory injunction for removal of illegal

constructions in the common space put up by one K. Subbiah [husband of 8th Respondent] and N.S. Shankar Rao [father of 7th Respondent].

Later the said suit was withdrawn by the Petitioner on 24.03.2010.

Since all the allottees have undivided common share and right in the common space, question of encroachment does not arise and the Writ

Petitions are not maintainable. If there is any illegal construction put up by the 7th Respondent, it is open to the Petitioner to work out his remedy

before the Civil Court.

In the result, both the Writ Petitions are dismissed giving liberty to the Petitioner to work out his remedy before the Civil Court. We make it

clear that withdrawal of the earlier suit O.S. No. 302/2008 on the file of Additional District Munsif, Madurai Town may not be an impediment to

work out his remedy before the Civil Court. No costs.