Sathuvachary Raghavendra Nagar Residents' Welfare Association vs Palar Garden Association and Others

R. Banumathi, J.—Being aggrieved by the order in W.P.No. 36739 of 2007 (04.03.2011) holding that the 1st Respondent ''Palar Garden

Association is entitled to proceed for raising compound wall, third party'' Sathuvachary Raghavendra Nagar Residents'' Welfare Association has

preferred this appeal. 1st Respondent Palar Garden Association was registered u/s 10 of Tamil Nadu Societies Registration Act, 1975 on

01.12.1986. 1st Respondent Association is having 66 members. The members of 1st Respondent Association purchased housing flats from Tamil

Nadu Housing Board by way of sale deeds in accordance with Tamil Nadu Housing Board Act. After purchasing the housing flats under outright

purchase scheme at Rs. 87,300/- including the cost of the land by executing sale deed on 01.09.1994, the members of 1st Respondent

Association became owners of the flats. 1st Respondent Association alleged that Respondents 9 to 11 who are neighbours have trespassed into

the area belonging to the 1st Respondent Association and since the area is open area, the street dogs and other animals trespass into the same and

causing nuisance. In an effort to keep the area intact from any kind of nuisance, 1st Respondent Association wanted to put up a compound wall.

1st Respondent Association sent a letter dated 03.11.1986 to Tamil Nadu Housing Board seeking permission to them to raise compound wall and

the said request was rejected by the communication dated 15.12.1986 stating that there is no provision in the scheme for putting up compound

wall and fencing. The communication dated 15.12.1986 further stated that raising of compound wall could be executed under deposit work, if the

allottees are willing to pay the amount in advance. In the other communications dated 4.6.1987 and 30.06.1987, it was again mentioned that

construction of compound wall should be done by the allottees themselves. 1st Respondent gave a letter to the Tamil Nadu Housing Board on

10.05.2006 to sell the vacant land measuring an extent of 2.34 acres to the Association. The 4th Respondent sent a communication in Letter

No.VS.1/1885/88 dated 28.07.2006 stating that the open space available after construction of flats belonged to all the Apartment owners equally

and that the vacant land cannot be sold to 1st Respondent Association. Again by communication in Letter No.VS.2/37244/98 dated 08.03.2007,

4th Respondent stated that the area in the front side was handed over to the local body and that the said area is under the maintenance and control

of Sathuvachary Panchayat. Insofar as construction of compound wall is concerned, 4th Respondent informed the 1st Respondent Association that

problems could be solved through appropriate forum except Tamil Nadu Housing Board. Challenging the said communication dated 28.07.2006

and 08.3.2007 respectively, 1st Respondent Association has filed W.P.No. 36739 of 2007.

3rd Respondent Tamil Nadu Housing Board filed counter stating that the members of 1st Respondent Association is not entitled to put up any

compound wall since the non-saleable area like roads, open space and park etc. have been handed over to the Municipality by executing a gift

deed. It is averred that Tamil Nadu Housing Board has no financial provision to construct a compound wall by enclosing a layout which was

already approved by the Director of Town and Country Planning Department.

Upon consideration of rival contentions, the learned single Judge held that the 1st Respondent Association is entitled to proceed for raising the

compound wall only around 66 flats of HIG Colony at their own cost subject to the condition that the 4th Respondent will not raise any objection

and also after earmarking the entire area which is in dispute and indicating the area for raising compound wall by the 4th Respondent. The learned

single Judge further held that the Executive Engineer, Vellore Housing Unit need not execute any more sale deed for raising up the compound wall.

Stating that raising of compound wall would deprive the Appellant''s access to National Highways Road and that they are having easement of

necessity, Appellant Association who is a third party in the Writ Petition has preferred this appeal.

Mr. K. Premkumar, learned counsel for Appellant has submitted that 1st Respondent Association has no right and authority to close down the

municipal road which is in existence for over 30 years and the action of the 1st Respondent is illegal and arbitrary and the official Respondents

have acted in collusion with the 1st Respondent Association in closing down the road. Learned counsel further submitted that the residential plan of

Appellant Association and other residential layouts were sanctioned by the competent authorities by relying on the road in question to have access

to Chennai Bangalore Highways, Collectorate, Office of the District Superintendent of Police etc. Learned counsel for Appellant submitted that the

road in question is the approach road and the said road is maintained by Vellore City Municipal Corporation and while so, closing down the

municipal road by the 1st Respondent Association is arbitrary and therefore, the order passed by the learned single Judge in W.P.No. 36739 of

2007 is liable to be set aside.

Mr. T.R. Rajagopalan, learned counsel for 1st Respondent submitted that the members of 1st Respondent Association purchased housing flats

from Tamil Nadu Housing Board in an out right purchase scheme. Tamil Nadu Housing Board''s documents make it clear that the entire area

belongs only to the residents'' represented by Palar Garden Association. Learned Senior Counsel submitted that park, play ground, roads and

other amenities are meant for use by the flat owners and it cannot be for the use of any outsiders. Learned Senior Counsel further submitted that

the open space including the road are intended for common benefit of flat owners to have ingress and egress and in order to prevent dogs or other

animals and other trespass, 1st Respondent Association had put up a compound wall and had also closed the open space. It was submitted that

neither Appellant Association nor other residents can claim right of access through Tamil Nadu Housing Board flats.

Mr. C. Kasirajan, learned counsel for Respondents 3 to 5 submitted that 66 HIG flats at Vellore Phase II was constructed by Tamil Nadu

Housing Board and handed over for maintenance to the 1st Respondent Association formed by the allottees on 01.07.1987. Learned counsel

submitted that as per Clause 13(vi) of the sale deed, vacant land around the building terrace shall be held in common by the owner of all flats i.e.

each purchaser is entitled for an area of land equal to the area of building/flat divided by number of flats. According to Tamil Nadu Housing Board,

the open space like park, play ground, roads etc. are coming under non-saleable areas which could not be registered in the name of allottees and

hence, there is no condition in the sale deed for non-saleable open spaces. Contention of Tamil Nadu Housing Board is that saleable area belongs

to the allottees whereas non-saleable areas like roads, open space and park etc. have been handed over to the Municipality by executing a gift

deed and that the allottees are entitled to only an enjoyment. It was further submitted that there was no financial provision for construction of a

compound wall enclosing the layout scheme.

Ms. P. Shanthi, learned counsel for 7th Respondent submitted that the disputed property is 30 feet road and compound wall to be put up in the

open space was shown as the access road to the rear side habitations and also for Raghavendra Nagar in the approved layout and the disputed

property is used as pathway by both residents of Raghavendra Nagar and Palar Garden and other public. According to 7th Respondent, the

disputed property has been classified as ''municipal road'' and the same is maintained by providing street lights etc.

We have also heard the submission of Mr. K.V. Dhanapalan, learned Additional Government Pleader for Respondents 2, 6 and 8.

Having regard to the rival stand taken by the parties, we have appointed an Advocate-Commissioner to inspect the subject property and the

road and also to note down the physical features. Accordingly, Advocate Commissioner inspected the property after giving due notice to the

parties and officials concerned and has filed a detailed report and plan.

Palar Garden is a Housing Board colony consisting of 66 flats in 8 blocks. All the 8 blocks are surrounded by compound wall. From the

entrance of Palar Garden, a Tar road runs towards north to a distance of 8 mtrs. and takes a left turn and runs up to 12 mtrs, where the disputed

wall is put up. On the left side of the road, a space for park is provided.

Advocate Commissioner noted that the disputed wall at the north-west end corner, the compound wall is connected by hollow blocks up to

the height of 5 feet. On the left side of the road, space for park is provided. Raghavendra Nagar is situated on the northern side of Palar Garden.

Advocate Commissioner has also noted that access to Raghavendra Nagar from the National Highway is by two roads of CMC Colony. Insofar

as access to Raghavendra Nagar, Advocate Commissioner observed as under:-

6..... The access to Raghavendra Nagar from the National Highway is by two roads of CMC Colony.....

8.... Therefore, on the Eastern side through CMC colony 7th street and through the Collector''s Office Road on the Western side, one can

approach Raghavendra Nagar from the National Highway, which runs on the South in the east-west direction.

Appellant Association claims that their layout was formed in 1987 and the access road to Palar Garden is shown as access road for

Raghavendra Nagar also. According to Appellant, 30 feet road shown as approach road is used as access road for about 30 years and that the

access road has been gifted to Vellore City Municipal Corporation. Appellant Association places reliance upon the Proceedings of the Deputy

Director of Rural Development, North Arcot Region in Na.Ka.No. 3550/87 NAR/5 dated 20.07.1987 in response to the letter dated 04.07.1987

from the Secretary, Palar Garden. In the said Proceedings (20.07.1987), the Deputy Director of Rural Development has stated as follows:-

This is Common Public Road and through this Road, several places to be developed. Therefore, this Road cannot be closed to prevent others

from using the same.

According to Appellant Association, the access road is in existence for more than 30 years.

Appellant Association also claims right through easement of necessity. Appellant also relies upon the stand of Tamil Nadu Housing Board that

access road is gifted to Vellore City Municipal Corporation and that the road is maintained by Vellore City Municipal Corporation. In the plan

attached to the Advocate Commissioner''s report, the Commissioner has indicated access road on the eastern side of CMC Colony leading to

Raghavendra Nagar.

In its counter-affidavit, the Vellore City Municipal Corporation has stated that the disputed property 30 feet road was shown as approach

road for rear side habitations and Raghavendra Nagar. For Raghavendra Nagar, the layout was sanctioned in the year 1987 and that the disputed

property is used as pathway by both residents'' of Raghavendra Nagar and Palar Garden and other public for about 25-30 years.

Per contra, 1st Respondent Association contended that mere showing of access road along with the disputed area as access road for

Raghavendra Nagar in the layout would not in any way confer right upon the Appellant.

The Supreme Court in Mohan Pandey and Another Vs. Smt. Usha Rani Rajgaria and Others, held that a regular suit is the appropriate remedy

for deciding property disputes between private persons.

The Supreme Court in Shalini Shyam Shetty and Another Vs. Rajendra Shankar Patil, , observed that a proceeding under Article 226 of the

Constitution of India is not the appropriate forum for adjudication of property disputes or disputes relating to title or declaring the private rights of

the parties. The Supreme Court further observed:-

However, this Court unfortunately discerns that of late there is a growing trend amongst several High Courts to entertain writ petition in cases

of pure property disputes. Disputes relating to partition suits, matters relating to execution of a decree, in cases of dispute between landlord and

tenant and also in a case of money decree and in various other cases where disputed questions of property are involved, writ courts are

entertaining such disputes. In some cases the High Courts, in a routine manner, entertain petitions under Article 227 over such disputes and such

petitions are treated as writ petitions.

We would like to make it clear that in view of the law referred to above in cases of property rights and in disputes between private individuals

writ court should not interfere unless there is any infraction of statute or it can be shown that a private individual is acting in collusion with a

statutory authority.

By careful consideration of rival contention of parties, we find that there are disputed questions of fact viz., (i) whether the access road is

intended for the exclusive use of Tamil Nadu Housing Board or whether it is a public road; (ii) whether the residents of Appellant Association and

others have got right of access through the disputed access road; (iii) whether Appellant Association has got right of way by easement of

necessity/easement by prescription; and (iv) other relevant questions which are to be determined only when the parties adduce oral and

documentary evidence. Considering the disputed questions of fact involved, we are of the view that parties are to work out their remedy before the

competent Civil Court.

It was stated that subsequent to the passing of the order in W.P.No. 36739 of 2007 (04.03.2011), the Tamil Nadu Housing Board executed a

gift deed (12.07.2011) donating the property access road to Vellore City Municipal Corporation. It was also stated that joint patta in respect of

open space issued to 66 allottees of 1st Respondent Association was also cancelled. Since execution of gift deed and cancellation of joint patta are

subsequent to the order passed in W.P.No. 36739 of 2007, those documents would not in any way affect the rights of parties from putting forth

their respective contention in the Civil Court. Like wise, it was stated that subsequent to the passing of order in the Writ Petition, 1st Respondent

Association is said to have put up wall in the disputed area and that would also not in any way affect the rights of the parties from putting forth their

contention in the Civil Court. In the result, the Writ Appeal is disposed of directing the Appellant to work out its remedy before the competent

Civil Court. As and when suit is filed by either of the parties, the Civil Court shall dispose of the suit as expeditiously as possible.

It is made clear that we have not expressed any opinion on the merits of the matter. No costs.