Madras High Court
The Commissioner vs The Deputy Commissioner Of Police on 17 March, 2025
Author: S. M. Subramaniam
Bench: S. M. Subramaniam
WA No. 1937 of 2024
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 17-03-2025
CORAM
THE HONOURABLE MR JUSTICE S. M. SUBRAMANIAM
AND
THE HONOURABLE MR.JUSTICE K.RAJASEKAR
WA No. 1937 of 2024
and
CMP.No.2923 of 2024
1. The Commissioner
Greater Chennai Corporation, Ripon
Buildings, Chennai -600 003.
2.The Zonal Officer
Corporation of Chennai - Zone 04,
Chennai Greater Corporation,
Tondiarpet, Chennai - 600 021.
3.The Regional Deputy Commissioner
(north)
Corporation of Chennai, Basin Bridge
Road, Chennai - 600 021.
Appellant(s)
Vs
1. The Deputy Commissioner Of Police
Madhavaram Milk Depot, Sengundram
https://www.mhc.tn.gov.in/judis ( Uploaded on: 07/04/2025 11:36:46 am )
WA No. 1937 of 2024
District, Chennai - 051.
2.Mrs. R. Jayalakshmi
W/o. Late Mr. M. Ramar,
No.276, E.H.Road,
Vysarpadi, Chennai - 039.
Respondent(s)
PRAYER
To set aside the order in WP.No.25431 of 2022 dated 25-01-2023 and pass such
further or other orders that this Court deem fit and necessary in the
circumstances of this Case and thus render justice
For Appellant(s): Mr.R.Ramanlaal AAG
asst by
Ms.P.T. Ramadevi
and Mr.A.S.Ragul Adhithya
For Respondent(s): Mr.M.Babumuthumeeran
Addl Public Prosecutor for R1
Mr.T.Sundar Rajan for R2
JUDGMENT
(Judgment of the Court was made by S.M.Subramaniam J.) Under assail is the Writ order dated 25.01.2023 passed in W.P.No.25431 of 2022.
2. The Commissioner, Greater Chennai Corporation, is the appellant before this Court. The 2nd respondent Mrs.R.Jayalakshmi, instituted the Writ proceedings for issuance of Writ of Mandamus, forbearing the respondents from https://www.mhc.tn.gov.in/judis ( Uploaded on: 07/04/2025 11:36:46 am ) WA No. 1937 of 2024 in any manner interfering with her peaceful possession and enjoyment of the property measuring 8897 sq.ft situated in Plot. No.1 and 2 of Thendral Nagar, 7th street, Selavoyal, Chennai – 600 118, comprised in O.S.No.70/6, as per Patta C.A.No.1521/1999 and C.A.No.305 of 2001 comprised in T.S.No.104/2 and 104/3 regularised by the respondents 1 and 2 therein vide Regularisation Permit No.1400/2020 dated 22.07.2020 and 1417 of 2020 dated 24.07.2020.
3. The contention of the appellant/Corporation is that land reserved for OSR (Park) has been sold illegally by the land promoter, by dividing it into two portions. One portion was sold in the year 1997 in favour of the 2 nd respondent. The Competent Authorities have not granted building plan permission, on the ground that a portion of the land has been earmarked for park area. When the 2nd respondent made an attempt to construct compound wall, the Corporation Authorities obstructed and demolished the same, which provided a cause for institution of a civil suit by the 2nd respondent in O.S.No.5157 of 2005 on the file of the XIII Assistant City Civil Court, Chennai, The suit is for bare injunction to restrain the Chennai Corporation from interfering with the peaceful possession of the 2nd respondent from the subject property. The relief sought for in the Writ Petition is also akin to that of the relief sought for in the civil suit. The suit was decreed in favour of the 2nd respondent. Appeal Suit filed by official respondents, more specifically, the Corporation was dismissed by the learned V Additional Judge, City Civil Court, Chennai in A.S.No.344 of 2007 dated 15.04.2009. Relying on the above judgment and decree of the Civil Court, https://www.mhc.tn.gov.in/judis ( Uploaded on: 07/04/2025 11:36:46 am ) WA No. 1937 of 2024 the Writ Petition has been instituted, seeking relief to prevent interference with the 2nd respondent's peaceful possession of the subject property.
4. Mr.Ramanlal, learned Additional Advocate General appearing on behalf of the appellants, would mainly contend that the approved layout of the year 1971, as approved by the Assistant Director, District Town and Country Planning, Chengalpet District, reveals that the subject property was earmarked as OSR (Park area) and therefore, the Civil Suit itself is not maintainable. The approved layout has been issued pursuant to the request made by the Chennai Corporation, and the Assistant Director, District Town and Country Planning communicated the copy of the approved layout of the year 1971 to the Zonal Officer, Zone -04, Greater Chennai Corporation in proceedings, dated 30.05.2023. The said letter reveals that the original layout No.41/71 was approved by the Assistant Director, District Town and Country Planning Chengalpet District in Proceedings. Ma.Pa./Corpn/D.T.C.P.No.41/71.
5. Pertinently, the husband of the 2nd respondent, late Mr.M.Ramar, filed W.P.No.29078 of 2011, challenging the rejection order, declining to grant building plan permission. The Writ petition was allowed, and the Commissioner, Chennai Corporation filed W.A.No.412 of 2013. The Division Bench of this Court considered the issues and disposed of the Writ Appeal, directing the authorities to consider the application submitted by the respondent for grant of planning permission on merits and in accordance with law, after https://www.mhc.tn.gov.in/judis ( Uploaded on: 07/04/2025 11:36:46 am ) WA No. 1937 of 2024 providing him an opportunity of personal hearing. Thereafter, the request of the 2nd respondent was considered, and the authorities rejected the building plan permission application, on the ground that a portion of the property is earmarked as OSR land for developing a park. In view of the fact that, as per the approved layout, the plot purchased by the 2nd respondent is OSR land, earmarked for public park, the sale itself became invalid and the building plan permission cannot be granted in favour of the 2nd respondent. The Writ Court has not considered these aspects and granted relief based on the Civil Court judgment and decree, which is untenable.
7. Learned counsel appearing on behalf of the 2nd respondent would oppose by stating that the Civil Court has discussed about the layout approval.
When there is a finding in the judgment of the Civil Court that the layout approval of the year 1971 was modified, the purchase of the plot by the 2nd respondent in the year 1997 is valid. Thus, the relief granted by the Writ Court is in consonance with law.
8. It is contended that the 2nd respondent and her husband validly purchased the plot in the year 1997 and made an attempt to construct a compound wall. The Corporation authorities obstructed the same, which resulted in institution of the civil suit. The civil suit seeking bare injunction was decreed in favour of the 2nd respondent. The appeal suit filed by the Corporation was dismissed. The Civil Court has elaborately considered the identification of https://www.mhc.tn.gov.in/judis ( Uploaded on: 07/04/2025 11:36:46 am ) WA No. 1937 of 2024 the plot purchased by the 2nd respondent, which was considered by the Writ Court. Thus, the present Writ Appeal is to be rejected.
9. This Court has considered the rival submissions made on behalf of parties to the lis.
10. In order to decide the issues on hand, it is relevant to consider the layout approval granted by the Assistant Director, District Town and Country Planning, Chengalpet District on 30.03.1971 in Proceedings k/g/kh/e-J/e/, vz;/41-71. This approval shows that a portion of the land was earmarked for park (OSR land) and another portion on the eastern side for shop construction.
The OSR land was divided into residential plots, and one plot has been sold in favour of the 2nd respondent and her husband, Late Mr.Raman in the year 1997 by the layout promoter. Regarding the approved layout by the competent authorities under the provisions of the Town and Country Planning Act, Section 101 of the Town and Country Planning Act, 1971 provides bar of jurisdiction of Court and the Section reads as under, “Any decision or order of the Tribunal or the Government or the planning authority or other authority or of any officer under this Act shall, subject to any appeal or revision or review provided under this Act, be final and shall not be liable to be questioned in any Court of law [and no injunction shall be granted by any court against the notices served to any person by the planning authority under section 56 or under section 57 of this Act].” https://www.mhc.tn.gov.in/judis ( Uploaded on: 07/04/2025 11:36:46 am ) WA No. 1937 of 2024
11. In the present case, the planning authority granted approved layout No.41/1971 in the year 1971. The said layout proceedings remains unchallenged. The 2nd respondent has admittedly instituted a suit for bare injunction. The approved layout of the year 1971 has not been marked as a document in the civil suit. In this background, the Civil Court ought not to have entertained the civil suit for bare injunction, since it is expressly barred under Section 101 of the Tamil Nadu Town and Country planning Act. Any layout approved by the competent authorities under the Town and Country Planning Act is a proceedings under the Act and the said proceedings having remained unchallenged, the conversion of the OSR land as residential plot at the instance of the land developer, cannot be a cause for institution of an injunction suit.
Thus, there is an express bar applies in the present case and consequently the suit is not maintainable under Section 9 of the CPC before the Civil Court.
12. As far as the approved layouts are concerned, OSR lands ought to be maintained for the purpose for which they have been earmarked in the approved layout. Even if such OSR lands are not gifted by formally registering a deed in favour of the local authority, it is to be maintained as per the layout plan approval and non-registration of a document in favour of the local authority would not change the character of the OSR land, which is earmarked as per the approved layout.
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13. The Hon'ble Supreme Court of India, in the case of Association of Vasanth Apartments' Owners Vs. Gopinath and Others1, settled the principles, more specifically, with reference to the provisions of the Tamil Nadu Town and Country Planning Act, 1971. The relevant observations of the Apex Court stands extracted here under, “22. It is further contended that the Rules/Regulations, being part of the master plan, are statutory and being framed under the Statute, they operate as law under Article 300A. Reliance is placed on Pune Municipal Corporation and another v.
Promoters and Builders Association and another [(2004) 10 SCC 796]. Reliance placed by appellants on Pt. Chet Ram Vashist (Dead) by Lrs. v. Municipal Corporation of Delhi [(1995) 1 SCC 47], is alleged to be misplaced. In the said case, there is no provision in the Delhi Municipal Corporation Act, 1957, under which, the Corporation could pass a Resolution to ask the appellant therein to transfer property free of cost. It is further contended that the Court may bear in mind that the Act replaced the Tamil Nadu Town and Country Planning Act, 1920, which was based on the British Town and Country Planning and Housing Act, 1909. From the Statements of Objects and Reasons, it is contended that the Act was based on the Model Town and Country Planning Bill, which was prepared by the Ministry of Health and Housing of the Government of India after a comprehensive study of various Town Planning Enactments in the western countries. The regional concept in the Maharashtra Town and Country Planning Act, 1966 also made its presence felt. The Act is designed to serve legitimate 1 2023 4 MLJ 353 (SC) https://www.mhc.tn.gov.in/judis ( Uploaded on: 07/04/2025 11:36:46 am ) WA No. 1937 of 2024 state interest of planned development down to the regional limit. Crowded urban areas, create adverse living conditions. The reservation of open space for parks and playgrounds is universally recognised. The decision of this Court in Bangalore Medical Trust v. B.S. Muddappa and others [(1991) 4 SCC 54], is relied upon. It is contended that the Act requires only the simple laying of Rules and Regulations under Section 123 of the Act. The laying of the Rules, which is not mandatory, if not followed, will not affect the validity of the Rules/Regulations. The terms of Section 123(2) are relied upon to contend that the Rules will come into effect even before they are placed before the Legislative Assembly and any modification made by the Assembly, will apply only from the date it is carried out. Reliance is placed on Atlas Cycle Industries Ltd. and others v. State of Haryana [(1979) 2 SCC 196]. It is further contended that acquisition under Chapter IV of the Act is not required in the facts. The area is not reserved in the master plan nor was any Notice published under Section 26 or 27. Acceptance of appellant’s contention would involve the need to compulsorily acquire all the reserved lands including areas such as setback areas, open spaces and other reserved area. Such interpretation would also render the provisions of Chapter VI, in particular Section 55, otiose. Chapter IV apply to areas reserved and notified in the master plan itself or to an area in excess of 10 per cent for proposed developed area of 3000 and above square meters or where area reserved is sought to be utilised for purpose not being communal or recreational, or areas, for which, there are other exceptions in the impugned Rules/Regulations. Section 20(1)(d) https://www.mhc.tn.gov.in/judis ( Uploaded on: 07/04/2025 11:36:46 am ) WA No. 1937 of 2024 stipulates that a detailed development plan may propose or provide for acquisition by purchase, exchange or otherwise, of any land. The words ‘or otherwise’ include a transfer of 10 per cent of the land by way of a gift. It is further contended that there is no constitutional obligation to pay compensation. The Act contemplates divestment of property without compensation as is evident from Sections 31 and 55 read with Sections 17 and 20. It is a settled position of law that Article 300A does not involve or compel payment of compensation. Support is drawn from Judgment of this Court in K.T. Plantation Private Limited and another. v. State of Karnataka2 “183. Payment of compensation amount is a constitutional requirement under Article 30(1- A) and under the second proviso to Article 31- A(1), unlike Article 300-A. After the Fortyfourth Amendment Act, 1978, the constitutional obligation to pay compensation to a person who is deprived of his property primarily depends upon the terms of the statute and the legislative policy. Article 300-A, however, does not prohibit the payment of just compensation when a person is deprived of his property, but the question is whether a person is entitled to get compensation, as a matter of right, in the absence of any stipulation in the statute, depriving him of his property.
xxx xxx xxx
192. At this stage, we may clarify that there is a difference between “no” compensation and “nil” compensation. A law seeking to acquire 2 (2011) 7 MLJ 1185 https://www.mhc.tn.gov.in/judis ( Uploaded on: 07/04/2025 11:36:46 am ) WA No. 1937 of 2024 private property for public purpose cannot say that “no compensation shall be paid”.
However, there could be a law awarding “nil” compensation in cases where the State undertakes to discharge the liabilities charged on the property under acquisition and onus is on the Government to establish validity of such law. In the latter case, the Court in exercise of judicial review will test such a law keeping in mind the above parameters.
xxx xxx xxx
205. Plea of unreasonableness, arbitrariness, proportionality, etc. always raises an element of subjectivity on which a court cannot strike down a statute or a statutory provision, especially when the right to property is no more a fundamental right. Otherwise the court will be substituting its wisdom to that of the legislature, which is impermissible in our constitutional democracy.” ...
74. We may however notice the following: “This does not mean, however, that an owner whose property is unencumbered has completely unlimited rights. To describe someone as an absolute owner of property is to say two things; it is to assert that his title to the property is indisputable, and that he has all the rights of ownership allowed by the legal system in question. We have seen that the rights of ownership may be limited by the adverse dominant rights of an encumbrancer or by the rights of the possessor (who is in fact one very special type of an encumbrancer). They may also be limited by special provisions of law such as Town & Country planning law, which regulates for social purposes the use which an owner https://www.mhc.tn.gov.in/judis ( Uploaded on: 07/04/2025 11:36:46 am ) WA No. 1937 of 2024 may make office land. But in addition to being restricted by such specific provisions of public law, and owner’s rights are restricted by a whole variety of provisions of the ordinary law, according to which various harmful and dangerous types of conduct qualify as criminal or tortious; the fact that I am the owner of a knife will not entitle me to use it to kill Smith. We may say that an owner is free to use and dispose of his property as he pleases, except in so far as he does not infringe his duties to specific encumbrancers, his duties under special regulations concerning the use of property (f) and his general duties under the general law of the land (f).” (Emphasis supplied) ...
106. The Court, in Virender Gaur (supra), further found power to the Municipality under Section 66 to transfer the land vested in it. The Court went on to hold, inter alia, as follows:
“11. It is seen that the open lands, vested in the Municipality, were meant for the public amenity to the residents of the locality to maintain ecology, sanitation, recreation, playground and ventilation purposes. The buildings directed to be constructed necessarily affect the health and the environment adversely, sanitation and other effects on the residents in the locality. Therefore, the order passed by the Government and the action taken pursuant thereto by the Municipality would clearly defeat the purpose of the scheme. Shri D.V. Sehgal, learned Senior Counsel, again contended that two decades have passed by and that, therefore, the Municipality is entitled to use the land for any purpose. We are unable to accept the self-destructive argument to put a premium on inaction. The land having been taken from the citizens https://www.mhc.tn.gov.in/judis ( Uploaded on: 07/04/2025 11:36:46 am ) WA No. 1937 of 2024 for a public purpose, the Municipality is required to use the land for the protection or preservation of hygienic conditions of the local residents in particular and the people in general and not for any other purpose. Equally acceptance of the argument of Shri V.C. Mahajan encourages preemptive action and conduct, deliberately chartered out to frustrate the proceedings and to make the result fait accompli. We are unable to accept the argument of fait accompli on the touchstone of prospective operation of our order.”
14. As per the principles laid down, a failure on the part of the land developer to execute a gift deed in favour of the local authority cannot be a ground to seek exoneration, for the purpose of the conversion of the OSR land for any other purpose. Therefore, converting the OSR land as residential plot by the land developer is illegal and in violation of the layout approved proceedings as well as the provisions of the Tamil Nadu Town and Country Planning Act.
15. As far as the Civil Court judgment and decree in the suit for bare injunction is concerned, the Civil Court has proceeded merely based on the facts established, on the ground that the 2nd respondent purchased a residential plot from the developer. Though Exhibit B1 document, the lay out of the house plot filed by the defendant side, the Civil Court has no jurisdiction to adjudicate the OSR land, which was already approved by the competent authority under the Town and Country Planning Act. When there is an express bar under Section https://www.mhc.tn.gov.in/judis ( Uploaded on: 07/04/2025 11:36:46 am ) WA No. 1937 of 2024 101 of the Act for entertaining a suit for injunction, the relief granted by the Civil Court on the ground that the 2nd respondent purchased the residential plot is of no avail. Even before this Court, there is a controversy between the parties that the layout approval of the year 1971 had been produced before the Civil Court.
16. Learned Additional Advocate General would submit that the said plan has not been produced. May that as it may, once the layout approval indicates that the portion of the property purchased by the 2nd respondent is a OSR land, reserved for park, the Civil Court lost its jurisdiction under Section 101 of the Tamil Nadu Town and Country Planning Act. Therefore, any findings on merits deserves no consideration on the hands of this Court. When the Civil Court has no jurisdiction under Section 101 of the Town and Country Planning Act, adjudication on merits in an injunction suit is not entertainable and the parties to the suit cannot rely on any findings. The Civil Court has not adjudicated about the validity of the layout approval of OSR land earmarked for developing park under the approved layout. Therefore, the said judgment and decree is to be declared as null and void, as far as the approved layout plan is concerned.
17. This Court is of the considered view that the layout approval was nd granted in the year 1971, and the portion of the land purchased by the 2 respondent is falling under the OSR land, earmarked for park area. If at all the https://www.mhc.tn.gov.in/judis ( Uploaded on: 07/04/2025 11:36:46 am ) WA No. 1937 of 2024 facts relating to OSR land has been suppressed at the time of purchase, it is for the 2nd respondent to sue her vendor for appropriate remedy. Contrarily, they cannot develop a litigation to change the character of a OSR land, nor such park area can be converted as a residential plot in violation of the approved layout plan approved by the competent authority under the Act.
18. In view of the facts and circumstances, this Court is inclined to invoke Article 227 of Constitution of India and declare the judgment and decree passed by the XIII Additional Judge, City Civil Court in O.S.No.5157 of 2005, dated 22.12.2006, as confirmed by the V Additional Judge, City Civil Court, Chennai in A.S.No.344 of 2007, dated 15.04.2009 as null and void and non-est in the eyes of law. However, the 2nd respondent is at liberty to sue their vendor for suppression of facts or for any other relief, for which, the 2nd respondent is legally entitled.
19. As far as the Writ order challenged in the present Writ Appeal is concerned, the learned Single Judge has proceeded based on the findings of the Civil Court. When the Civil Court has no jurisdiction, in view of an express bar under Section 101 of the Town and Country Planning Act, the said order is also liable to be set aside. Consequently, the Writ Order dated 25.01.2023 passed in W.P.No.25431 of 2022 is set aside.
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20. Accordingly, the Writ Appeal is allowed. No costs. Consequently, the connected Miscellaneous Petitions, if any, are closed.
(S.M.SUBRAMANIAM J.)(K.RAJASEKAR J.) 17-03-2025 GD Index:Yes/No Speaking/Non-speaking order Internet:Yes Neutral Citation:Yes/No https://www.mhc.tn.gov.in/judis ( Uploaded on: 07/04/2025 11:36:46 am ) WA No. 1937 of 2024 To
1.The Deputy Commissioner Of Police Madhavaram Milk Depot, Sengundram District, Chennai - 051.
2.Mrs. R. Jayalakshmi W/o. Late Mr. M. Ramar, No.276, E.H.Road, Vysarpadi, Chennai - 039.
https://www.mhc.tn.gov.in/judis ( Uploaded on: 07/04/2025 11:36:46 am ) WA No. 1937 of 2024 S.M.SUBRAMANIAM J. AND K.RAJASEKAR J.
gd WA No. 1937 of 2024 17-03-2025 https://www.mhc.tn.gov.in/judis ( Uploaded on: 07/04/2025 11:36:46 am )