The Nungambakkam Muslim Welfare Association Vs The Collector of Chennai, The Assistant Commissioner of Police (Law and Order), Durai Sankar, State Vice President, Hindu Munnani and A/m Agatheeswarar Prasanna Venkatesa Perumal Thirukoil

@JUDGMENTTAG-ORDER

K. Suguna, J.@mdashThis writ petition has been filed challenging the order of the first respondent dated 22.2.2005 and for further direction to the respondents to allow the petitioner''s Association and the Mosque to have the use of the old gate as well as the new gate to have access to the Mosque through Chokkatan Salai. By the order dated 21.3.2006, the 3^rd respondent was impleaded and the 4^th respondent was impleaded by order dated 30.11.2006.

2. According to the learned Counsel for the petitioner, the petitioner''s Association is a registered Society having its office and the prayer hall at No. 59, Chokkatan Salai, Nungambakkam. The said Association is having the front portion of the premises bearing Door No. 205 in the Valluvarkottam High Road, Numgambakkam. According to the learned Counsel for the petitioner, the 4^th respondent temple, basing on the order passed under the City Tenancy Protection Act, have plotted out various sites and sold them to 7 persons. One among them was Mrs. K.K. Radhammal and the plot allotted to Radhammal was sold to the petitioner''s Association in the year 1980. Subsequently, in the year 1981, the other plots which were allotted to another individual was also purchased by the petitioner''s Association. According to the learned Counsel for the petitioner, in the above said purchased plots the petitioner''s association has constructed a gate, besides their vendors were using the Chokkatan Salai as a road having access to their property. As the purchaser through the vendors, according to the learned Counsel for the petitioner, the Association is also having a right to use the Chokkatan Salai. The specific plea of the learned Counsel for the petitioner is ''that the property which has been purchased from K.K. Radhammal is having the entrance at No. 59, Chokkattan Salai, Numgambakkam. Likewise, the other plots which were purchased by the Association are also having their entrance only in the Chokkattan Salai. Since their vendors have used the Chokkatan Salai as their access to their property, as the purchaser of the said lands, the petitioner''s association is having the same right and the same cannot be denied, Apart from this, according to the learned Counsel for the petitioner, the association has got the easementary right of ingress and egress through Chokkatan Salai as per the documents relating to the plots of land purchased for the benefit of the Association. That apart, the gate has been put up in that property as the owner of the property. The association has got every right to use the above said Chokkattan Salai to have the convenience entry to the mosque and the prayer hall of the said association. That apart, according to the learned Counsel for the petitioner, at the instance of the third party, viz., the third respondent herein without even providing an opportunity to the petitioner, the Collector has passed the impugned order restraining the association from using the disputed passage and directions were issued to remove the encroachments made by them by way of putting up gates in the land in question. According to the learned Counsel for the petitioner, admittedly, neither any notice was issued to the petitioner''s association nor any opportunity was provided to them before passing the impugned order. As such, the same is prima facie illegal and the same is liable to the set aside. Apart from this, according to the learned Counsel for the petitioner, the petitioner''s association has not encroached any land or any portion of the land belonging to the temple and all the dwellers of the Chokkattan Salai are permitted to use the pathway restraining the association alone from using the pathway, is discriminatory one. According to the learned Counsel for the petitioner, since they cannot be termed as an encroacher, as the owner of the above said plots, they are legally entitled to use the Chokkattan Salai. Hence, the learned Counsel for the petitioner has prayed for setting aside of the impugned order of the first respondent.

3. According to the learned Counsel for the fourth respondent, the Chokkattan Salai situate in Nungambakkam and is measuring 600 ft. x 30 ft. i.e., 18,000 sq.ft or 7 grounds and 1200 sq.ft absolutely belongs to the 4^th respondent. According to the learned Counsel since the above said Chokkattan Salai belongs to the fourth respondent temple, nobody has got right over the Chokkattan Salai except the tenants of the fourth respondent temple. That apart, the entire stretch of Chokkattan Salai is exclusively for the benefit of the tenants of the temple. The petitioner had put up a new gate oh the Chokkattan Salai and no gate was existed on the Chokkattarr Salai for the past so many years and because of the new gate put up by the petitioner, the vehicles that come to the petitioner''s prayer hall are parked in the Chokkattan Salai. Since the above said Chokkattan Salai is a private land belonging to the temple, parking of the vehicle of the members of the petitioner''s Association is prima facie illegal. According to the learned Counsel, the petitioner''s association absolutely has no right over the said Chokkattan Salai either by way of custom or by usage. In fact, even after the establishment of prayer hall, as per the corporation records, the address of the property was only No. 205, Valluvarkottam High Road. Hence, the question of saying that Door No. 59 of Chokkattan Salai as far as the petitioner is concerned, does not arise. That apart, according to the learned Counsel, it is not the case of the petitioner that the petitioner does not have any access to either the prayer hall or the premises. For convenience sake they want to use the Chokkattan Salai and if they seek the easementary right their remedy is not under Article 226 of the Constitution of India but before the Civil Court. Apart from this, the petitioner either under any law or otherwise cannot claim any right over the Chokkattan Salai which is in question, since the same is a private road lies only with the fourth respondent temple. As such, the learned Counsel for the fourth respondent has submitted that the prayer in the writ petition is not maintainable and the same has to be dismissed.

4. The learned Counsel for the third respondent has contended that under the guise of prayer hall, the petitioner''s association had in fact constructed a mosque without obtaining proper permission from the local authority and the petitioner had encroached the land in which the mosque is situate and put up the construction illegally. That apart, according to the framed counsel for the 3^rd respondent, the petitioner had purchased only 2725 sq.ft. from Mrs. K.K. Radhammal and the land purchased from K.K. Radhammal is facing Valluvarkottam High Road and shops are constructed in the said land. The petitioner has encroached the rear portion of the land in which the present mosque has been built up and the land in which the mosque is constructed belongs to the Agastheeswarar Prasanna Venkateswara Perumal Devasthanam and the entrance for the said mosque is only through the Valluvar Kottam High Road and not through the Chokkattan Salai. The Chokkattan Salai is the street which belongs to the temple in which many houses belongs to the Devasthanam is built up and the rent from these houses are collected by the Executive Officer of the Temple and according to the learned Counsel, the Executive officer of the temple has also put up a board in the Street to the effect that the said Chokkattan Salai is a private street, and even according to the learned Counsel for the third respondent, the access to the mosque from the Vallurvar Kottam High Road is still available and hence, only for convenience sake, the petitioner''s association want to use this Chokkattan Salai and according to the learned Counsel an enquiry was conducted by the first respondent on various dates and the petitioner had also attended the enquiry conducted by the first respondent but these facts have been suppressed. Apart from this, even as per the impugned order also basing on the letter giving by the 3^rd respondent, action was taken and orders were passed but the writ petition was originally filed by the petitioner without impleading the 3^rd respondent and also the 4^th respondent who is in fact the owner of the said road. As such, according to the learned Counsel, the writ petition has to be dismissed on the ground of non-joinder of the parties. That apart, according to the learned Counsel, the entire dispute is only civil in nature and the only remedy available to the petitioner is through the civil court and not by way of a writ petition. Apart from this, due to public disorder, the police were called many times and the petitioner was also warned severely by the police not to make any opening through the Chokkattan Salai Street. As such, the third respondent had prayed for the dismissal of the above said writ petition.

5. According to the learned Counsel for the third respondent, the Revenue officer of the Corporation of Chennai, by letter dated 22.4.2005 has passed the following order:

With reference to above cited, I hereby inform you that since you are not able to produce the relevant documents in respect of the property bearing Door No. 10/1, Chockattan Salai, Nungambakkam, Chennai - 34, Division-78, under bill No. 2665/01 in the name of The Nungambakkam Muslim Welfare Association is hereby stands cancelled.

6. I have considered the submission of the learned Counsel for the petitioner as well as the respondents. The fourth respondent temple had taken a specific plea that Chokkattan Salai is a private street, absolutely belongs to the temple and denying the same, no reply has been filed by the petitioner herein. That apart, the petitioner claims his right to use the Chokkattan Salai since they purchased the property from one M/s. K.K. Radhammal but, according to the petition filed by the third respondent, the property of K.K. Radhammal is facing Valluvarkottam Road, consequently, by purchasing the above said land, the petitioner cannot claim any right over Chokkattan Salai. For this also, no reply has been filed. Though, the learned Counsel for the petitioner had submitted that no opportunity was given to the petitioner before passing the impugned order, the third respondent in the vacate stay petition filed, at page No. 3 has specifically taken a stand that an enquiry was conducted on various dates and the petitioner had attended the enquiry conducted by the first respondent. This fact is also not denied by the petitioner by way of reply affidavit. As such, the contention of the learned Counsel for the petitioner that the impugned order has been passed without providing any opportunity to the petitioner will not stand. That apart, the contention of the learned Counsel for the petitioner is that since Radhammal who is the vendor of the petitioner was using the said Chokkattan Salai, the petitioner association as a purchaser is also entitled to have all the rights of its vendor, but in the counter affidavit filed by the third respondent at page No. 2, a specific stand has been taken that the land purchased from K.K. Radhammal is facing the Vallurvar Kottam High Road and the shops are constructed in the said land and the petitioner had encroached the rear portion of these shops in which the present mosque has been built up. For this also, no reply has been filed. That apart, the petitioner is claiming his right on Chokkattan Salai through easementary right. That apart, as rightly contended by the learned Counsel for the fourth respondent it is not the case of the petitioner that there is no access except the Chokkattan Salai to the petitioner''s premises, but, as rightly contended by the learned Counsel for the fourth respondent, for convenience sake, the petitioner wants to use the gate constructed facing the Chokkattan Salai. The impugned order has been passed specifically on the ground that the encroachment were made by the petitioner. Apart from this, the Chokkattan Salai which is a disputed passage is in the temple premises of Agatheeswarar Prasanna Venkatesa Perumal Temple near Valluvar Kottam. On the other hand, the case of the petitioner is that they have not made any encroachment and they are claiming their right through easement. Since the entire dispute is civil in nature and also the entire case revolves around the disputed question of fact which in my opinion could be settled only through the competent Civil Court, the relief sought for in these circumstances, cannot be dealt with under Article 226 of the Constitution of India.

7. Therefore, in my opinion, I do not find any merit in the writ petition. However, liberty is given to the petitioner to approach the appropriate forum for the relief sought for.

8. With this observation, the writ petition is dismissed. Consequently, connected W.P.M.Ps and W.V.M.Ps. are closed.