LAWS(MAD)-2006-12-322

NUNGAMBAKKAM MUSLIM WELFARE ASSOCIATION Vs. COLLECTOR OF CHENNAI,; ASSISTANT COMMISSIONER OF POLICE (LAW AND ORDER); DURAI SANKAR, STATE VICE PRESIDENT, HINDU MUNNANI AND A/M AGATHEESWARAR PRASANNA VENKATESA PERUMAL THIRUKOIL, REP BY ITS EXECUTIVE OFFICER

Decided On December 28, 2006
NUNGAMBAKKAM MUSLIM WELFARE ASSOCIATION Appellant
V/S
Collector Of Chennai,; Assistant Commissioner Of Police (Law And Order); Durai Sankar, State Vice President, Hindu Munnani And A/M Agatheeswarar Prasanna Venkatesa Perumal Thirukoil, Rep By Its Executive Officer Respondents

JUDGEMENT

(1.) This 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 3rd respondent was impleaded and the 4th 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 4th 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 4th 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.