IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:29.7.2009 Coram: THE HONOURABLE MR.JUSTICE G.RAJASURIA S.A.Nos.63, 67 and 68 of 2009 and M.P.No.1 of 2008 Bagyam .... Appellant in S.A.No.63/09 Umayal ... Appellant in S.A.No.67/09 Kaliammal ... Appellant in S.A.No.68/09 /1st Respondent Plaintiff vs. 1.The Commissioner, Coimbatore City Municipal Corporation, Coimbatore. 2.GRG Nagar Welfare Society, rep.by its President. ..... Respondents in all the GRG Nagar, Coimbatore. S.As/Appellants/2nd Respondent/Defendants 1 & 2 These second appeals are filed against the judgements and decrees dated 29.11.2008 passed by the Principal District Judge, Coimbatore, in A.S.Nos.118, 119 and 117 of 2007, partly reversing the judgements and decrees dated 5.3.2007 passed by the Iind Additional Subordinate Judge, Coimbatore, in O.S.Nos.522, 530 and 526 of 2005. For Appellants : Mr.T.R.Rajagopalan,Sr.counsel for M/s.T.R.Rajaraman(in S.As.67 & 68/09) Mr.R.Subramanian(in S.ANo.63/09) For Respondents : Mr.T.V.Ramanujam,Sr.counsel for M/s.T.V.Krishnamachari for R2 Mr.R.Sivakumar for R1 COMMON JUDGMENT These second appeals are focussed by the plaintiffs, animadverting upon the judgements and decrees dated 29.11.2008 passed by the District Judge, Coimbatore, in A.S.Nos.118, 119 and 117 of https://hcservices.ecourts.gov.in/hcservices/ 2007, partly reversing the judgements and decrees dated 5.3.2007 passed by the Subordinate Judge, Coimbatore, in O.S.Nos.522, 530 and 526 of 2005. For the sake of convenience, the parties are referred to hereunder according to their litigative status before the trial Court. 2. Broadly but briefly, narratively but precisely, the relevant facts absolutely necessary and germane for the disposal of these second appeals, would run thus: (a) The respective appellants in the second appeals were plaintiffs in the three suits separately filed by them before the Sub Court, Coimbatore. The gist and kernal, the sum and substance of the averments in the three plaints are almost similar, which would run thus:- (i) The properties described in the schedule of the plaints belong to the Sowripalayam Rural Co-operative Housing Society (hereinafter referred to as the 'Housing Society' for short), which sold those properties in favour of the plaintiffs and they started enjoying the same exclusively for more than 18 years. The suit properties in those suits, including the one other adjoining area totally measuring an extent of 26 cents were earmarked for construction of a nursery school in the larger lay out plan approved by the planning authority, consequent upon the said Housing Society having submitted a plan for developing a large area for house sites. However, subsequently, the said Housing Society divided a portion of that area earmarked for nursery school into three moieties (the suit properties) and sold them in favour of each of the three plaintiffs herein. (ii) D2-the G.R.G.Nagar Welfare Society even though had no power to alienate or transfer the suit properties, involved in this litigation, simply executed a gift deed-Ex.A4 dated 11.2.2005 in favour of defendant No.1 as though the latter could put to public use. Hence, three suits were filed, incorporating in each of the suits the following prayers. 1.To declare that the plaintiff is the absolute owner of the suit property; 2. to declare that the Gift Settlement Deed dated 11.2.2005 and registered as document No.351 of 2005 is invalid, illegal, unenforceable and void abinitio; 3. to declare that the resolution No.15 passed by the first defendant on 28.9.2005 as invalid, unenforceable, arbitrary and illegal; 4. to grant permanent injunction, so as to restrain the defendants from in any way disturbing the plaintiff's peaceful possession and enjoyment of the suit schedule property' 5. to direct the defendants to pay cost of the suit." https://hcservices.ecourts.gov.in/hcservices/ (b) Per contra, remonstrating and refuting the allegations/averments in the plaints, D1 and D2 filed separate written statements in each of the suits to the effect that the Sowripalayam Rural Co-operative Housing Society had no right to alienate the suit properties, which were earmarked for construction of a nursery school for the welfare of the said newly emerged colony, as per the approved lay out issued in favour of the said Housing Society. (c) The trial Court framed the relevant issues. During trial, in O.S.No.522 of 2005, on the plaintiff's side one Radhakrishnan was examined as P.W.1 and Exs.A1 to A25 were marked. On the defendants' side D.W.1 to D.W.4 were examined and Exs.B1 to B17 were marked. Ex.C1 to C3 were marked as Court documents. (d) In O.S.No.530 of 2005, on the plaintiff's side one Shanmugapriya was examined as P.W.1 and Exs.A1 to A23 were marked. On the defendants' side D.W.1 to D.W.4 were examined and Exs.B1 to B17 were marked. Ex.C1 to C3 were marked as Court documents. (d) In O.S.No.526 of 2005, the plaintiff examined herself as P.W.1 and Exs.A1 to A25 were marked. On the defendants' side D.W.1 to D.W.5 were examined and Exs.B1 to B.19 were marked. (e) Ultimately, the trial Court decreed the original suits in toto. (f) Being aggrieved by and dissatisfied with the judgements of the trial Court, three appeals in A.S.Nos.118, 119 and 117 of 2007 were filed before the District Judge, Coimbatore, by D1-the Commissioner, Coimbatore City Municipal Corporation, Coimbatore, and the appellate Court partly allowed the appeals by setting aside the Gift Deed executed by D2 in favour of D1, but rejecting the other prayers for declaration of plaintiffs' title over the suit properties, for injunction and for declaration of the resolution No.15 passed by the first defendant on 28.9.2005 relating to the suit property. 3. Animadverting upon the appellate Courts judgements, the plaintiffs filed the second appeals on various grounds, the gist and kernal, the warp and woof of them would run thus: The first appellate Court failed to take into consideration the fact that despite the suit properties having been earmarked for nursery school, the Sowripalayam Rural Co-operative Housing Society got itself divested of its ownership and the said Society had re- thinking over it and passed resolution to alienate the suit properties in favour of the plaintiffs, who acquired valid title over the same under the sale deed-Ex.A1 dated 22.5.1987. The first appellate Court also failed to take into account Ex.A3 dated 17.8.1987 and Ex.B1 dated 24.5.1985 (in O.S.Nos.522 & 530 of 2005); https://hcservices.ecourts.gov.in/hcservices/ Ex.B6 (in O.S.No.526 of 2005)-the circulars issued by the authorities concerned, as those circulars enabled the said Sowripalayam Rural Co-operative Housing Society to alienate those areas earlier earmarked for nursery school. The first appellate Court also failed to take into consideration that the plaintiffs have always been ready and willing to put the areas purchased by them for raising nursery school for mentally retarded, creche and nursery school, which are in pari materia with the purpose for which those areas were earmarked in the approved plan. Accordingly, the appellants suggested the following substantial questions of law: "(i) Is the learned District Judge correct in dismissing the suit having held that the Gift Settlement Deed dated 11.2.2005 is invalid and the only recourse open to the respondent is to proceed under Town and Country Planning Act? (ii) When the appellant is admittedly in possession from the date of purchase and got perfected title by adverse possession, is the learned District Judge right in dismissing the suit? (iii) When Ex.B3 and A6 specifically and categorically permit the reserved land to be sold to members who intended to develop for the same purpose, is the learned District Judge correct in dismissing the suit?" 4. After hearing both sides for sometime, I was of the view that the following substantial questions of law could be framed and accordingly framed as under. With the consent of both sides, the matter is being disposed of on merits. 1. Whether the first appellate Court was justified in holding the sale deeds in favour of the appellants as null and void, even though there is no specific pleading on the part of the defendants that the resolution passed by the Co-operative Society concerned and the consequent execution of the sale deed in favour of the plaintiff are illegal and whether the sale executed by the Co-operative Society in favour of the plaintiff in the wake of the available evidence could be termed as one executed by the Society, without any legal backup or statutory sanction? 2. Whether the first appellate Court was justified in deciding that the transfer of the suit property by the Society in favour of the plaintiff is void, ignoring the provisions of the Transfer of Property Act that an owner could transfer the property in favour of a third party and that too, in the wake of the decision of the Honourable Apex Court reported in AIR 2003 SUPREME COURT 1648 – M/s.D.L.F.Qutab Enclave Complex Educational Charitable Trust vs. State of Haryana and Others. 3. Whether Ex.A3 and Ex.B1 dated 24.5.1985 (in O.S.Nos.522 & 530 of 2005); Ex.B6 (in O.S.No.526 of 2005) https://hcservices.ecourts.gov.in/hcservices/ were misconstrued by the first appellate Court in giving a finding relating to the sale executed by the Housing Society in favour of the plaintiffs? 4. Whether there is any perversity or non-application of law in rendering the judgement by the first appellate Court? 5. Both sides took note of the above substantial questions of law and advanced their arguments in this connection 6. Indubitably and indisputably, the said Co-operative Housing Society, referred to supra, developed a vast tract of land as house sites and in that, for roads and other amenities, areas were earmarked. 10% of the area as contemplated under Section 250(2) of the Coimbatore City Municipal Corporation Act was also reserved by the said Society. However, the Society passed a resolution to alienate the area earmarked for nursery school, in the said reserved 10% area to the three of the plaintiffs, who are the second appellants herein. These plaintiffs approached the Revenue Department concerned and got the patta changed in their names. However, subsequently, it was cancelled as without any corresponding change in the approved plan they got such mutation in the Revenue records. It is also a fact that a temple was constructed by some residents in the area, which was earmarked for nursery school, in violation of the approved plan, but that is not the subject matter of dispute here. R2 in fact executed Ex.A4-the Gift Deed in favour of D1-the Municipality. Consequently, D1 attempted to meddle with the area purchased by the plaintiffs. Whereupon, the suits were filed. 7. The learned Senior counsel for the plaintiffs would set forth and put forth his argument projecting that the second defendant, who is only a Welfare Society was not at all the owner of the suit properties involved in the three suits, nonetheless, they did choose to execute such gift deed in favour of D1-the Municipality. 8. I could see considerable force in the submission made on the plaintiffs' side in view of the maxim 'Nemo dat quod non habet' (no one can convey better than what he has). 9. Accordingly if viewed the Welfare Society could only take care of the welfare of the residence of the colony, but they cannot have any ownership right over the immovable properties situated in the said colony and as such, it is glaringly and pellucidly, axiomatically and apparently clear that such a gift deed executed by D2 in favour of D1, is without any basis and D1, thereby cannot be held to have acquired any valid right by virtue of the said gift deed. As such, the trial Court's finding on this issue is correct. https://hcservices.ecourts.gov.in/hcservices/ 10. The first appellate Court also agreed with the trial Court on that point is concerned. However, after holding so, the first appellate Court, without au fait with law and au courant with facts, held that the plaintiffs did not acquire valid title under their respective sale deeds, as according to the first appellate Court's view, the said Co-operative Housing Society had no right to transfer the property, since as per the approved plan, the said area is coming within the 10% reserved area. 11. The learned Senior counsel for the plaintiffs citing the decision of the Honourable Apex Court reported in AIR 2003 SUPREME COURT 1648 – M/s.D.L.F.Qutab Enclave Complex Educational Charitable Trust vs. State of Haryana and Others, would advance and develop his argument highlighting that even the 10% reserved area could be transferred by the Housing Society, as it happened to be the owner of the property, but subject to the condition that the purchaser, namely, the plaintiffs should put to use the said land only for the purpose for which it is earmarked in the approved plan, so to say for nursery school purpose. 12. Whereas, the learned Senior counsel for D2 would put forth his arguments, which were adopted by the learned counsel for D1, expatiating that the said Housing Society had no right to alienate the suit properties, which formed part of the said 10% area, as there is a statutory embargo as per Section 250 (2) of the Coimbatore City Municipal Corporation Act, 1981; the plaintiffs who happened to be the transferees under those sale deeds cannot be treated as owners; the plaintiffs did not have had genuine intention of running any nursery school incommensurate with the purpose for which the land was earmarked in the approved plan; they, by their own conduct, exposed themselves as though they purchased the property only as housing plots and subsequently also illegally got mutation in the Revenue records, for house building purpose, and subsequently, the Revenue authorities cancelled such mutation and the sub division of the suit properties and as such, it is too late in the day on the part of the plaintiffs to have a volte face, and that too quite antithetical to their stand, to plead and pose as though (i) the plaintiff in O.S.No.522 of 2005 is willing to construct a nursery school for mentally retarded (2) the plaintiff in O.S.No.530 of 2005 is going to construct a creche (3) the plaintiff in O.S.No.526 of 2005 is going to construct a nursery school; no person can construct in such a small plot of 2930 sq.feet, any school worth the name; furthermore, as per the current policy of the Government, for constructing schools there should be adequate space, which is not at all available for the plaintiffs to fulfil such purpose and the Co-operative Housing Society had not obtained approval from the Registrar of Co-operative Societies for effecting such sales in favour of the plaintiffs. https://hcservices.ecourts.gov.in/hcservices/ 13. It is just and necessary, at the first instance, to refer to the judgement of the Honourable Apex Court, reported in AIR 2003 SUPREME COURT 1648 – M/s.D.L.F.Qutab Enclave Complex Educational Charitable Trust vs. State of Haryana and Others, certain excerpts from it would run thus:- "33. Right of transfer of land is indisputably incidental to the right of ownership. Such a right can be curtailed or taken away only by reason of a statute. An embargo upon the owner of the land to transfer the same in the opinion of this Court should not be readily inferred. Section 3(3) (a)(iv) of the Act does not expressly impose any restriction. The same is merely a part of an undertaking. Assuming that a prohibition to transfer the land can be read therein by necessary implication, it is interesting to note that the consequence of violation of such undertaking has not been specified. In other words, if a transfer is made in violation of the undertaking, the statute does not provide that the same would be illegal or the transferee would not derive any title by reason thereof. 34. The right of a transferee, however, would be subject to the building laws or regulatory statute relating to user of the property. In terms of the said Act, in the event the Government takes over the plots, it would be at liberty to transfer such land to any person or institution including a local authority as it may deem fit. Purpose of such a clause, therefore, is to ensure that schools, hospitals, community centres and other community buildings are established at the places reserved therefor in the sanction plan but there does not exist any embargo as regards the person or persons who would run and manage the same. 35. A regulatory Act must be construed having regard to the purpose it seeks to achieve. The State as a statutory authority cannot ask for something which is not contemplated under the Act. A statute relating to regulation of user of land must not be construed to be a limitation prohibiting transfer of land which does not affect its user. 36. The plan provides that schools, hospitals etc. would be located at particular sites. When that purpose is satisfied, the court in the name of interpretation would not make a further attempt to find out who did so. 37. It is not in dispute that Respondents 1 and 2 have sought to impose such a ban specifically by reason of the impugned circulars issued in the years 1994 and 1996, which in unmistakable terms go to show that even according https://hcservices.ecourts.gov.in/hcservices/ to them such a bar did not exist prior thereto. It is accepted that even the respondents concerned had recognised at least three transfers. If transfer of the sites reserved for construction of school was prohibited under the statute, it is axiomatic that in absence of any provision contained therein, the respondent could not exercise any power of regularising such transaction. A transfer prohibited by a statute would be illegal and not irregular. Once it is held that such transfer would only be “irregular” which can be cured, it would necessarily mean that there was no absolute statutory bar in relation thereto. The building plans which were submitted on various days in 1992 and onwards had been accepted and sanctioned. If it be held that such transfers by DLF were illegal, there was no occasion for Respondents 1 and 2 herein to pass the building plans keeping in view of the fact that the transferee thereof did not acquire any title whatsoever. Such a right of transfer to third parties to raise construction having been accepted by Respondents 1 and 2 prior to 1994, it does not now lie in their mouth to contend that there existed a statutory bar. The primal question is as to whether by reason of an executive fiat, a right to transfer one’s own property could be curtailed. The answer to the said question must be rendered in the negative. 38. Expropriatory statute, as is well known, must be strictly construed. 39. In terms of Section 3 of the Act, a colonizer has to construct schools, hospitals, community centres and community buildings at its own cost or to get the same constructed by any other institution at its cost and for the said purpose lands have to be set apart. However, in the event the same is not done within a reasonable time, the State would be at liberty to take over the lands and fulfil the said objects as specified in the sanctioned plan. The power of the Government to take over the lands must be held to be restricted and would be applicable only in a case where community services had not been developed. In other words, where the community services had not been developed the question of acquisition thereof by the Government would arise and not in any other situation. 40. The High Court in our opinion, committed a manifest error in holding that despite the fact that the statute uses two different expressions as regards cost to be incurred for construction of schools, hospitals and community centres etc., the effect thereof would be the same. In case of the licensee the words used are “at his own cost” whereas in respect of the others, the words used are “at its cost”. When different terminologies are used https://hcservices.ecourts.gov.in/hcservices/ by the legislature it must be presumed that the same had been done consciously with a view to convey different meanings. Had the intention of the legislature been, as has been held by the High Court, that the cost for such a construction has to be borne by the licensee irrespective of the fact as to whether it undertakes such constructions itself or gets them constructed by its contractors, there was absolutely no reason as to why clearer terms could not be used by the legislature. The words “at his own cost” refer to the licensee, whereas in the case of his nominee being either an institution or a person, as the case may be, the words “at its cost” have been used. The expression “at his own cost” and “at its cost” must be held to have separate and distinct meaning. They are not meant to aim at the same person. 41. The words “institution” or “person” evidently do not refer to a building contractor as understood in ordinary parlance. It must be held to carry different meanings. Indisputably, any person can get constructions made on his own land either under his own supervision or through a contractor. For the purpose of raising constructions through a contractor, permission of the statutory authorities is not necessary. In that view of the matter, clearly the legislature did not contemplate that the words “any other institution or individual” refer only to a building contractor for the purpose of construction of the buildings alone and for no other purpose." 14. I would like to observe that the said judgement of the Honourable Apex Court is a land mark judgement, which highlighted and spotlighted the fact that simply because in the approved plan certain areas are earmarked for certain public purpose, that it does not mean that the developer had lost his right over it; a developer could alienate even such area reserved for public purpose, provided, the purchaser of it should use it for the very same purpose for which it was earmarked in the approved plan. In other words, the right to alienate by the developer is one guaranteed under Article 300-A of the Constitution of India and also under the Transfer of Property Act and such a restriction regarding use would run with the land. In this legal background, the first appellate Court failed to visualise the matter and it fell into error in holding as though the sales effected by the Housing Society in favour of the plaintiffs are invalid. The plaintiffs cannot put to use the said area for the residential purpose, but they could only put to use for the purpose of constructing nursery school, as contemplated in the approved plan. It is also quite obvious that in each and every plot, the construction of a nursery school is totally impossible and they cannot try to hood-wink or bamboozle, flummox or confuse, obfuscate or perplex the authorities by stating that each and every three of https://hcservices.ecourts.gov.in/hcservices/ the plaintiffs would raise a nursery school for mentally retarded, creche and nursery school, respectively, and try to get plan approval, because in such small area, no school/institution worth the name could be constructed and it would be quite against all norms of construction of non-residential institutions and such a position is palpably and pellucidly, obviously and axiomatically clear and no more elaboration is required in this regard. 15. Over and above that the recent Notifications of the Government dated 17.8.1987 and 24.5.1985 also would display and demonstrate as to what are all the requirements for constructing educational buildings. Whether the said Notifications are squarely applicable to the nursery school or not, this Court while dealing with this case is of the firm view that constructing abnormally small institution, like pigeon holes for children would be deleterious to their welfare. As such, it is crystal clear that as per the Honourable Apex Court's judgement, referred to supra, the ownership right acquired over the land by each of the plaintiffs is subject to legal approval regarding land use. 16. The learned Senior counsel for the D2 would submit that if this Court upholds the ownership right of the plaintiffs over the suit properties even by imposing conditions as set out supra, certainly the plaintiffs would try to confuse the executive authorities and take undue advantage of the judgement