G. Rajasuria, J.@mdashThese 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 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.
(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); 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 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) 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 u/s 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.
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 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.
13. It is just and necessary, at the first instance, to refer to the judgement of the Honourable Apex Court, reported in 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 therefore 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 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 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 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 of this Court.
17. I make it clear that the authorities are expected to apply their mind and read the judgement of this Court and understand in proper perspective
and no holder of a decree would be legally entitled to misinterpret the judgement and decree of this Court and if any one does do, it would amount
to contempt of Court.
18. The learned Senior Counsel for the plaintiffs also cite the decision of the Division Bench of this Court reported in 2007(3) MLJ 990 - Sri Devi
Nagar Residences Welfare Association v. Subbathal and Ors., and an excerpt from it would run thus:
10. We, therefore, appreciate the interest of the residents of the area, who have purchased the plots as per the approved lay out, that for the
benefit of the ecology, certain areas should be earmarked for garden and park so as to provide fresh air to the residents of that locality. To that
extent, we disagree with the learned single Judge that the residents of the locality are not necessary parties for the simple reason that respondents 1
to 3 have got the layout approved, as per the proceedings dated 17.7.1994, with the specific conditions, referred to above, which becomes the
part and parcel of the terms of the sale deeds. Therefore, it would be too harsh to say that the residents of the locality are not proper parties.
19. The said decision is on the point that the area earmarked in the approved plan will run with the terms and conditions of the sale deed and as
such, such a view is incommensurate with the view expressed by the Honourable Apex Court in the cited decision D.L.F. Qutab Enclave Complex
Educational Charitable Trust Vs. State of Haryana and Others, .
20. The learned Senior Counsel for the plaintiffs also cited the following two decisions of this Court.
(i) (2008) 2 MLJ 824 � Raja Baskara Kumara Shanmugam @ N. Kumaran Sethupathy v. Director of town and Country planning and Anr.;
(ii) K.S. Kamakshi Chetty, P. Ponnappan, P. Dharmarajan and P. Shivakumar Vs. The Commissioner, Aruppukottai Municipality and The
Director, Town and Country Planning,
21. The above decisions are on a different point relating to the right of the authority concerned to take over the land earmarked for public purpose.
22. Whereas, the learned Senior Counsel for the defendants cited the following decisions and hence, it is just and necessary to refer to them also:
(i) 2004 WLR 514 - 1. R. Varadarajan and Ors. v. 1. The Director of town and Country Planning and Ors.
This decision has been cited for the purpose of canvassing the point that when the sale deeds in favour of the plaintiffs executed by the Society lack
bona fides, such sales cannot be the bases for declaring the title of the plaintiffs by the Court. Based on the said decision, the learned Senior
Counsel for the second defendant would develop his argument projecting that the said Housing Society, without the authorisation of the Registrar
of the co-operative Society, executed the sale deeds and that too, for housing purpose, quite antithetical to the nursery school purpose for which it
is earmarked.
I am of the opinion that the defendants, as already held supra, as of now are having nothing to do with the suit properties. Of course, D1 the
Corporation and even D2 the Welfare Society are having the right to take legal steps to enforce the plan in appropriate manner and at present, this
Court is not concerned with that issue. Once the defendants are turned out to be the persons having no interest in the immovable property as of
now, virtually, they cannot be heard to contend that the right acquired by the plaintiffs are defective on the ground that the vendor, namely, the
Housing Society had not obtained proper permission from the Registrar. Tamil Nadu Co-operative Societies Act is a self-contained Act and the
Registrar of Co-operative Societies, has been vested with enormous powers. If the Housing Society mismanages its affairs or illegally transfers its
land, certainly the Registrar has got power to take action. I would like to incidentally point out that it is open to the defendants to set the law in
motion by approaching the Registrar of Co-operative Societies. But in this suit, the defendants cannot pick holes in the title of the plaintiffs, who
acquired title to the suit properties by virtue of those three sale deeds executed by the Housing Society, which, as per the Honourable Apex
Court''s judgement, was the owner as on the date of effecting such sales. As such, I could see no force in the argument put forth on the side of the
defendants.
23. (ii) Pt. Chet Ram Vashist (Dead) by Lrs. Vs. Municipal Corporation of Delhi, .
This decision is for the purpose of highlighting that once an area is reserved for public purpose, as per the plan, then the original owner seizes to be
the legal owner of the land.
Avoiding digressive discussion, I may straight away point out that the subsequent decision of the Honourable Apex Court reported in D.L.F.
Qutab Enclave Complex Educational Charitable Trust Vs. State of Haryana and Others, , would unambiguously and unequivocally spotlight the
fact that the colonizer who reserved the space for public purpose, can transfer the same, but it is subject to the conditions relating to land use. I
may put it otherwise that the said earmarking of an area for public purpose would be an encumbrance like mortgage, which would run with the land
and whomsoever acquires it, could use the same only subject to that encumbrance and the condition relating to land use.
24. The learned Senior Counsel for D2 would try to canvas the point that in fact the Honourable Apex Court in the decision reported in D.L.F.
Qutab Enclave Complex Educational Charitable Trust Vs. State of Haryana and Others, had no occasion to deal with the issue relating to
alienation of 10% area referred to in Section 250(2) of the Coimbatore City Municipal Corporation Act, 1981, or a similar provision, but in that
case, decided by the Honourable Apex Court, a trust was created by a group of companies and it was asked to carry out the public purpose and
the trust in turn entered into agreements of lease with one other Society, which was unsuccessfully challenged in that case.
25. A plain reading of the cited judgement of the Honourable Supreme Court reported in D.L.F. Qutab Enclave Complex Educational Charitable
Trust Vs. State of Haryana and Others, would reveal that Section 3(3)(a)(iv) of the Haryana Urban Development and Regulation of Urban Areas
Act (8 of 1975) was interpreted and in that connection the judgement emerged. I could see much of muchness between the facts in that case and in
this case.
26. No doubt, the 10% reserved area was not specifically involved in the decision of the Honourable Apex Court, but issue relating to a similar
area was dealt with in that case. I could even go to the extent of pointing out that even if it is taken that the judgement of the Honourable Apex
Court at paragraph 34 to 41 extracted above constitutes ''obiter'' as per the view of the defendants, still it is a binding precedent.
27. Unambiguously and unequivocally, without mincing words, their Lordships of the the Honourable Apex Court in the judgement reported in
D.L.F. Qutab Enclave Complex Educational Charitable Trust Vs. State of Haryana and Others, clearly held that a coloniser is having a right to
transfer even the areas earmarked for public purpose except streets, perks, passages and such like.
28. In this case, the area earmarked happened to be one for nursery school and part of it was transferred to the plaintiffs. Hence even by
phantasmegorical thoughts it cannot be said that the said decision of the honourable Apex Court is not applicable to the facts and circumstances of
this case. But the first appellate Court has not considered these aspects at all and fell into error in dismissing the prayer for declaration of the
plaintiffs'' title over the suit properties.
29. (iii) 1995(5) SCC 762- Dr. G.N. Khajuria and Ors. v. Delhi Development Authority and Ors.
This decision is concerning a set of facts where a site which was earmarked for park was allowed by the Delhi Development Authority for
constructing a nursery school and in that connection their Lordships held that it was not open to the Delhi Development Authority to carve out any
space meant for park, for nursery school.
In view of my discussion supra and that too, based on the decision of the honourable Apex Court reported in D.L.F. Qutab Enclave Complex
Educational Charitable Trust Vs. State of Haryana and Others, , the above decision cited by the learned Counsel for the defendants is not relevant
to the facts and circumstances of this case.
30. (iv) Ammani Vs. The Tiruchengode Municipality, .
(v) T. Gnanamani Ammal Vs. The Avaniappuram Town Panchayat, .
In view of the decision of the Honourable Apex Court reported in D.L.F. Qutab Enclave Complex Educational Charitable Trust Vs. State of
Haryana and Others, , the above two decisions are not relevant to this case.
31. (vi) 2002-3-L.W.180 - 1. E. Elumalai and 11 Ors. v. 1. Corporation of Madras and Ors.
32. (vii) Bangalore Medical Trust Vs. B.S. Muddappa and others,
33. (viii) 1991(4) SCC 464 - M.I. Builders Pvt. Ltd. v. Radhey Shyam Sahu.
These aforesaid three decisions were cited, without any elaboration, and the samde would not have any relevance to the facts of the present case
and the decision of the Honourable Apex Court reported in D.L.F. Qutab Enclave Complex Educational Charitable Trust Vs. State of Haryana
and Others, , referred to supra, would govern the field.
34. (ix) Karpaga Nagar Nala Urimai Sangam Vs. Municipal Administration and Water Supply Department and Pillayar Patti Karpaga Vinayagar,
Koil Nagarathar Trust, .
A plain reading of the above decision would reveal that it is not relevant to this case, as it is concerning to the liability to keep certain plots for
public purpose and there could be no quarrel over with such a proposition.
35. The learned Counsel for the defendants cited the following other decisions, which are in my opinion not relevant in view of the Apex Court''s
judgement reported in D.L.F. Qutab Enclave Complex Educational Charitable Trust Vs. State of Haryana and Others, .
(i) (1995) 5 Scc 762 � Dr. G.N. Khajuria and Ors. v. Delhi Development Authority and Ors.
(ii) Municipal Corporation, Ludhiana and Another Vs. Balinder Bachan Singh (D) by Lrs. and Others,
(iii) Lakshmi v. Senneerkuppam Panchayat and Ors.
(iv) 2006(5) CTC 504 � The Corporate Manager, CSI Corporate Schools, CSI v. The State of Tamil Nadu.
(vii) C. Cheriathan Vs. P. Narayanan Embranthiri and Others, .
36. The learned Senior Counsel citing the following decision of this Court reported in 2007(5) CTC 392 � M. Kanagasabapathy v. 1. The
Special Officer and Ors. has argued that the maxim ''Generalia specialibus non derogant'' is applicable.
37. I would like to cite the following other maxims also in that line
(i) Expressio unius est exclusio alterius;
(ii) Expressum facit cessare tacitum, which means the express mention of one thing implies the exclusion of another.
38. In the above decision cited by the learned Counsel for the defendants, the point decided was that the special enactment, namely, Tamil Nadu
Payment of Subsistence Allowance Act, 1981, will prevail over the Tamil Nadu Co-operative Societies Payment Act, in matters of subsistence
allowance to the employees, governing the payment of subsistence allowance, who are under suspension and as such I could see no relevancy in
the facts and circumstances of this case.
39. In view of the categorical dictum laid down by the Supreme Court in the cited decision D.L.F. Qutab Enclave Complex Educational Charitable
Trust Vs. State of Haryana and Others, , unless there is any specific provision of deprivation of ownership, in a statute, the question of depriving an
owner of his right over the property would not arise. u/s 250 of the Coimbator City Municipal Corporation Act, 1981, even though such alienation
of the reserved area would be punishable, nevertheless it does not say that the coloniser would not be the owner of the property and the transferee
from such coloniser would not acquire title over it at all.
40. The learned Counsel for D2 would submit that once such alienation is punishable under law, then the connected transaction should be held as
void.
41. I would like to disagree with such a view for the reason that even child marriage is prohibited and it is punishable as an offence, yet the validity
of the marriage is not affected. As such, unless law specifically mandates that such transfer would be void, the voidity of such transfer cannot be
assumed and presumed in the light of the decision of the Honourable Apex Court reported in D.L.F. Qutab Enclave Complex Educational
Charitable Trust Vs. State of Haryana and Others, .
42. The learned Senior Counsel for D2 took pains to expound that the plaintiffs cannot be heard to contend that D2 is having no locus standi to
argue this appeal because D2 did not file any first appeal.
43. I am of the view that since D1 and D2 are parties here, they are entitled to argue the matter and accordingly, argued and I have also heard
their arguments and considered their submissions, but I could not countenance and uphold their submissions and contentions for the reasons cited
supra.
44. The learned Counsel for the plaintiffs has contended that there was no pleading in the written statement challenging the authority of the Co-
operative Society to transfer the suit properties in favour of the plaintiffs.
45. The learned Senior Counsel for D2, by inviting the attention of this Court to the various portions of the written statement would highlight that
the right of the Co-operative Society was challenged and that itself would be sufficient pleading.
46. To the risk of repetition and pleonasm without being tautalogous, I would like to hold that already I have held that the sale deed executed by
the Society in favour of the plaintiffs cannot be held to be invalid on the ground that the Society did not obtain permission from the Registrar and as
such, on some technical ground, that D2 did not plead specifically those points relegates to a lower level and dies down in oblivion.
47. The learned Counsel for the plaintiffs placing reliance on Ex.A3 and Ex.B1-the Notifications, would highlight that even the Government passed
Notifications empowering such colonisers to alienate the 10% areas reserved for public purpose. However, the leaned Senior Counsel for D2
would contend that quite antithetical to the statutory provisions as contained in Section 250(2) of the Coimbatore City Municipal Corporation Act,
1981, the Government itself had no right to pass such Notifications, as contained in Ex.A3 and Ex.B1.
48. My discussion supra based on the Judgement of the Honourable Apex Court reported in D.L.F. Qutab Enclave Complex Educational
Charitable Trust Vs. State of Haryana and Others, would clearly establish and evince that even de hors Ex.A3 and Ex.B1-the Notifications, the
Co-operative Society had the right to alienate and as such Ex.A3 and Ex.B1 are buttressing and fortifying the stand of the Housing Society.
49. In the result, the substantial questions of law are answered as under:
The substantial question of law (i) is decided to the effect that the first appellate Court was not justified in holding the sale deeds in favour of the
plaintiffs as null and void and those sale deeds are valid subject to the condition that the plaintiffs cannot put to use those lands for the purposes
which the plaintiffs arbitrarily and undesirably stated as though in each of the plots each of the plaintiffs would construct (i) nursery school for
mentally retarded, (ii) creche and (iii)nursery school.
The substantial question of law (ii) is decided to the effect that the first appellate Court was not justified in deciding that the transfers of the suit
properties by the Sowripalayam Rural Co-operative Housing Society in favour of the plaintiffs are void by ignoring the provisions of the Transfer of
Property Act and the decision of the Honourable Apex Court reported in D.L.F. Qutab Enclave Complex Educational Charitable Trust Vs. State
of Haryana and Others, .
The substantial question of law (iii) is decided to the effect that the first appellate Court misconstrued the Government Notifications, which are in
pari materia and in consonance with the decision of the Honourable Apex Court reported in D.L.F. Qutab Enclave Complex Educational
Charitable Trust Vs. State of Haryana and Others, , in fact the said Notifications also buttress the case of the plaintiffs.
50. As such I could see that there is perversity and non-application of law in rendering judgement by the first appellate Court, wherefore, the
judgement of the first appellate Court is set aside and the judgement of the trial Court is restored in a modified manner as under:
The plaintiffs are declared to be the absolute owners of the suit properties respectively, subject to the condition that they are not entitled to put up
in their respective plots, buildings, such as nursery school for mentally retarded, creche and nursery school. The gift deed dated 11.2.2005
executed by D2 in favour of D1 is declared as null and void. The resolution No. 15 passed by the first defendant on 28.9.2005, is invalid. The
permanent injunction is granted as against the defendants to the limited extent that they are at liberty to move the appropriate authorities for taking
steps to enforce the approved plan in accordance with law and till then, they cannot of their own accord, disturb the respective peaceful
possession of the plaintiffs over the suit properties. However, there is no order as to costs.
51. I make it clear that with the help of this judgement and decree, the plaintiffs cannot put to use the suit properties as they pleaded in their plaints,
but it is for either the plaintiffs or the authorities concerned to take legal steps to carry out the pith and marrow, the warp and woof, the gist and
kernal of the purpose for which the area was earmarked in the plan, subject to the current Legislations and the subsidiary Legislations emerged,
relating to the land use.
