Madras High Court
M.Chandrasekaran vs Tiruchirappalli City Municipal ... on 28 November, 2019
Author: M.Sathyanarayanan
Bench: M.Sathyanarayanan
W.P.(MD)No.1877 of 2016, etc., batch
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
RESERVED ON : 29.08.2019
PRONOUNCED ON : 28.11.2019
CORAM:
THE HONOURABLE MR. JUSTICE M.SATHYANARAYANAN
and
THE HONOURABLE MR. JUSTICE B.PUGALENDHI
W.P.(MD) Nos.13794 of 2016, 17332 & 17457 of 2017
and
W.M.P.(MD) Nos.10279, 10280 of 2016, 13876 of 2017
W.P.(MD)No.13794 of 2016:
M.Chandrasekaran ... Petitioner
Vs.
1.Tiruchirappalli City Municipal Corporation,
Rep. by its Commissioner,
Bharathidasan Salai,
Cantonment,
Tiruchirappalli – 1.
2.The Assistant Commissioner,
Srirangam Zone,
Tiruchirappalli City Municipal Corporation,
Srirangam,
Tiruchirappalli – 6.
3.Kaleeswaran
4.A.Natarajan
5.R.Rajagopal ... Respondents
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W.P.(MD)No.1877 of 2016, etc., batch
PRAYER : Writ Petition filed under Article 226 of the
Constitution of India seeking issuance of a Writ of
Certiorari by calling for the records pertaining to the
proceedings of the 2nd respondent made in
Na.Ka.No.F1/1866/2016/Shri, dated 31.03.2016 and quash the
same.
For Petitioner : Mr.G.Ethirajulu
for Mr.P.Athimoolapandian
For Respondents : Mr.N.S.Karthikeyan
for R.1 & R.2
Mr.A.Rahul for R.3
*****
W.P.(MD)No.17332 of 2017:
M.S.Dheviga ... Petitioner
Vs.
1.Tiruchirappalli City Municipal Corporation,
Rep. by its Commissioner,
Bharathidasan Salai,
Cantonment,
Tiruchirappalli – 1.
2.The Assistant Commissioner,
Srirangam Zone,
Tiruchirappalli City Municipal Corporation,
Srirangam,
Tiruchirappalli – 6.
3.Gayathiri Nagar Kudiyiruppor Welfare Association,
Rep. by its President,
V.Kaleeswaran ... Respondents
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W.P.(MD)No.1877 of 2016, etc., batch
PRAYER : Writ Petition filed under Article 226 of the
Constitution of India seeking issuance of a Writ of
Certiorari by calling for the records pertaining to the
proceedings of the 2nd respondent made in
Na.Ka.No.F1/1866/2016/Shri, dated 31.03.2016 and quash the
same.
For Petitioner : Mr.P.Arun Jayatram
For Respondents : Mr.N.S.Karthikeyan
for R.1 & R.2
Mr.C.K.Chandrasekar
for Mr.A.Rahul for R.3
*****
W.P.(MD)No.17457 of 2017:
Gayathri Nagar Kudiyiruppor
Nala Sangam – Thiruvanaikovil,
Rep. by its President,
V.Kaleeswaran ... Petitioner
Vs.
1.The Director of Town and Country Planning,
No.807, Anna Salai,
Chennai – 2.
2.The Chairman / Member Secretary,
Tiruchirappalli Local Planning Authority,
No.71, William's Road,
Melapudur,
Sangiliyandapuram,
Tiruchirappalli.
3.The District Collector,
Tiruchirappalli District.
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W.P.(MD)No.1877 of 2016, etc., batch
4.The Commissioner of Tiruchirappalli,
City Municipal Corporation,
Tiruchirappalli.
5.The Assistant Commissioner,
Srirangam Zone,
Tiruchirappalli City Municipal Corporation,
Srirangam, Trichy – 6.
6.The Revenue Divisional Officer,
Srirangam,
Tiruchirappalli District.
7.The Tahsildar,
Srirangam,
Tiruchirappalli District.
8.M.Chandrasekaran
9.R.Veeramani
10.Irudhaya Soosai
11.M.S.Devika
12.Sowmiya Saranathan ... Respondents
PRAYER : Writ Petition filed under Article 226 of the
Constitution of India seeking issuance of a Writ of
Mandamus directing the respondents 1 to 7 to remove the
unauthorized constructions and fencing put up by the
respondents 8 to 12 in S.Nos.2424/23, 2425/2, 2425/5,
2426/5B, 2426/5G and in S.No.2427/27, Block No.48, Ward
No.6, Thimmarayasamuthiram Village, Srirangam Taluk,
Trichy District, in the area earmarked for Park,
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W.P.(MD)No.1877 of 2016, etc., batch
Children's Playground, Open Space and Road, etc., in
violation of approved layout plan bearing
No.Ma.Pi.Va/Ma(Tha.Tha)No.137/1986 of the Directorate of
Town and Country Planning on the basis of the
representation made by the petitioner dated 09.08.2017,
within a stipulated time limit.
For Petitioner : Mr.C.K.Chandrasekar
for Mr.A.Rahul
For Respondents : Mr.A.K.Baskarapandian
Special Government Pleader
for R.1 to R.3, R.6 & R.7
Mr.N.S.Karthikeyan
for R.4 & R.5
Mr.G.Ethirajulu
for Mr.P.Athimoolapandian
for R.8
No representation
for R.9 to R.12
*****
C O M M O N O R D E R
B.PUGALENDHI, J., The Writ Petition in W.P.(MD)No.17457 of 2017 is filed by Gayathri Nagar Kudiyiruppor Nala Sangam, represented by its President, namely, V.Kaleeswaran, seeking a direction to the official respondents / respondents 1 to 7 to remove the encroachments made by the 5/29 http://www.judis.nic.in W.P.(MD)No.1877 of 2016, etc., batch private respondents / respondents 8 to 12 in the common area earmarked for the purpose of Park, Playground, Road, etc.
2. The Writ Petitions in W.P.(MD)Nos.13794 of 2016 & 17332 of 2017 are filed by one Chandrasekaran and M.S.Devika, respectively, challenging the order passed by the Assistant Commissioner, Tiruchirappalli City Municipal Corporation, dated 31.03.2016, permitting Gayathri Nagar Kudiyiruppor Nala Sangam to put up display boards indicating the common area as Park, Children Playground, etc. These petitioners are arrayed as respondents 8 & 11, respectively, in W.P.(MD)No.17457 of 2017.
3. For the sake of convenience and clarity, the parties are being referred to as per their rank in W.P. (MD)No.17457 of 2017.
4. According to Gayathri Nagar Kudiyiruppor Nala Sangam (in short 'Sangam'), the land comprised in S.Nos. 2424 part, 2425, 2426/5, 2427, 2435, 2436 & 2437, originally belonged to one V.K.Ramanujam, T.Ramesh and P.Raja and they developed the same as a residential layout 6/29 http://www.judis.nic.in W.P.(MD)No.1877 of 2016, etc., batch in the year 1986. Necessary applications were also moved before the Town and Country Planning Department, Trichy and the Deputy Director, Town and Country Planning Department, Trichy, granted approval for the layout vide proceedings in Na.Ka.No.7302/86/Thi.Tha.Ma.4, dated 16.10.1986, wherein, 48 housing plots and 4 shops were located and vacant sites, earmarked for Park [26428 sq.ft], Children's playground [4440 sq.ft] and open space [1620 sq.ft] were also allotted. The Srirangam Municipality has also granted approval for the layout on 06.06.1988. In the interregnum period, the land owners have executed a power of attorney in favour of the eighth respondent, vide Document No.139/1986, dated 22.12.1986, before the Sub Registrar, Srirangam, to sell the house plots and the members of the Sangam are the purchasers of the approved house plots.
5. The grievance of the Sangam is that the eighth respondent, after exhausting the sale of all the 48 approved housing plots, has sold the vacant sites earmarked for the purpose of Park, Children's Playground and open space to the private respondents and they have 7/29 http://www.judis.nic.in W.P.(MD)No.1877 of 2016, etc., batch also made constructions over the same. According to the Sangam, while granting approval, the Town and Country Planning Department stipulated certain conditions and one among them is that without obtaining the permission of the Director, Town and Country Planning, no changes shall be made in the extent of the plot or no change shall be made in the place reserved for public purpose and the place reserved for public purpose, as per the approved layout, shall be used only for the purpose for which it was earmarked. For better appreciation, the relevant clause are extracted as under:
“1. ... efh; Cuikg;g[ ,af;Fehpd; Kd; mDkjpapd;wp mq;fPfhpf;fg;gl;l tiuglj;jpw;F khwhf jdpg;gl;l kidapy; mst[fspy; mikg;gpy; khw;wq;fs; bra;tnjh my;yJ tiuaWf;fg;gl;l bghJ cgnahfj;jpw;fhd ,lq;fspy; khWjy; bra;tnjh TlhJ.
... ... ...
4. mq;fPfhpf;fg;gl;l tiuglj;jpy; fhl;lg;gl;Ls;s ve;j xU kid bghJf; fhhpaq;fSf;fhf bjhpt[ bra;ag;gl;Ls;s kidfs; jtpu FoapUg;g[ tPL fl;Ltjw;F kl;Lnk gad;gLj;j ntz;Lnk my;yhJ fil> gz;lfrhiy kw;Wk;
FoapUg;g[ my;yhj my;yJ FoapUg;gpidr; rhh;ej ; cgnahfj;jpw;fy;yhj fl;olk; fl;Ltjw;F gad;gLj;jf;TlhJ. bghJ trjpfSf;fhf njh;t[ bra;ag;gl;Ls;s ,lq;fs; aht[k; mq;fPfhpf;fg;gl;l tiuglq;fspy; Fwpf;fg;gl;Ls;s cgnahfq;fSf;fhf kl;Lnk gad;gLj;jg;gl ntz;Lk;.”
6. Therefore, the Sangam have approached the 8/29 http://www.judis.nic.in W.P.(MD)No.1877 of 2016, etc., batch Assistant Commissioner, Trichy Corporation, to permit them to put up a display board indicating the site as Park, Children's Playground, so as to avoid the encroachment and the Assistant Commissioner, vide order dated 31.03.2016, has accorded permission to them. This order was challenged by the respondents 8 & 11 by filing W.P.(MD)Nos.13794 of 2016 and 17332 of 2017.
7. In the meantime, the Sangam has also submitted a representation before the official respondents on 09.08.2017 to remove the encroachments made by the private respondents in the area earmarked for public purpose and alleging inaction on the part of the official respondents, they have also approached this Court by filing W.P.(MD)No. 17457 of 2017.
8. Heard the learned Counsel appearing for the respective parties.
9. The learned Counsel for the Sangam would reiterate the facts of the case and would submit that the eighth respondent was granted power of attorney to sell the 9/29 http://www.judis.nic.in W.P.(MD)No.1877 of 2016, etc., batch housing plots alone. However, he overstepped and sold the common areas in the layout, which were earmarked for public purposes, to the private respondents herein. The purchasers have also approached the Special Tahsildar for Land Settlement, Srirangam for patta and vide proceedings dated 15.05.2013, in No.A2/104/2013, the Special Tahsildar, without issuing any notice to the members of the Sangam and without taking note of the layout approved by the Directorate of Town and Country Planning, has issued patta. Taking advantage of the same, the private respondents have commenced construction activities and they have also damaged the display board put up by the Sangam, pursuant to the order passed by the Assistant Commissioner, Srirangam Zone, Trichy Corporation, dated 31.03.2016. Therefore, he prays for a direction to the official respondents to remove the unauthorized constructions made by the private respondents in the area earmarked for public purposes.
10. Per contra, the learned Counsel appearing for the eighth respondent would submit that the Town and Country Planning Department has accorded only technical sanction 10/29 http://www.judis.nic.in W.P.(MD)No.1877 of 2016, etc., batch on 16.10.1986 and the Srirangam Municipality has granted consequential final approval, after two years, ie., on 06.06.1988. In fact, it is this respondent, who has prepared the layout. But, without consulting him, the same was modified and 16.65 % of vacant site was allotted for public purpose. Since larger extent of land has been allotted for public purpose (more than 10%) and due to delay in granting the approval as well as most of the plots have already been sold prior to the approval, this respondent has submitted a letter dated 14.06.1988 refusing to accept the layout sanctioned by the Srirangam Municipality.
11. The learned Counsel further submitted that the disputed area was sold as early as in the year 1986 and construction was also commenced by the purchasers in the year 1988 itself. For all these years, the members of the Sangam were silent spectators and have now approached this Court. In fact, the purchasers of the disputed area have applied for patta and the Special Tahsildar for Land Settlement, Srirangam, vide proceedings dated 15.05.2013, in No.A2/104/2013, has issued joint patta. This was 11/29 http://www.judis.nic.in W.P.(MD)No.1877 of 2016, etc., batch challenged by the members of the Sangam, nearly after five years, before the Assistant Settlement Officer (North), Chennai and the Assistant Settlement Officer, by order dated 09.08.2019, has confirmed the order of the Special Tahsildar granting patta and thus, as on date, there is a valid patta in their favour.
12. The learned Counsel further submitted that the Sangam was registered only in the year 2016, bearing registration number 100/2016, ie., only for the purpose of this litigation, the Sangam was established. The members of this Sangam have already preferred a suit in O.S.No. 1092 of 2011 before the II Additional District Munsif, Tiruchirappalli, as against the private respondents for mandatory injunction in respect of the disputed area and the same was dismissed on 15.07.2015. He further submitted that without issuing any notice to the purchasers, the Assistant Commissioner, Srirangam Zone, Trichy Corporation has passed an order dated 31.03.2016, permitting the Sangam to erect display boards in the lands belonging to them. He would further contend that had there been an opportunity of personal hearing, the Assistant 12/29 http://www.judis.nic.in W.P.(MD)No.1877 of 2016, etc., batch Commissioner would not have passed such an order and as there is a violation of principles of natural justice, the learned Counsel prays for passing appropriate orders.
13. The learned Standing Counsel appearing for the Trichy Corporation has filed a counter affidavit of the Tiruchirappalli Local Planning Authority that the layout plan comprised in Town Survey Nos.2424(part), 2425, 2426/5, 2427, 2428, 2435, 2436 & 2437 at Block No.48, Ward No.3, Srirangam Taluk, Trichy District, was issued as residential purpose by plan Approval No.137/86 and subsequently, vide proceedings dated 16.10.1986 in No. 7302/86.Thi.Th.Ma.4, the Senior Deputy Director, Town and Country Planning Department, Trichy, has granted approval. He would further submit that the plan approval consist of establishment of Park, Shops, Playground, in addition to 48 housing plots.
14. With regard to the representation made by the Sangam, the learned Standing Counsel would submit that an inspection was made by the officials and they have found that the respondents 8 to 12 / private respondents have 13/29 http://www.judis.nic.in W.P.(MD)No.1877 of 2016, etc., batch constructed certain buildings in violation of the building plan approval, in the place which was earmarked for park, playground, etc. As per the norms incurred in the Town and Country Planning Act, for any change or alteration in the plan approval, permission from the Director of Town and Country Planning is a must to change over the classification of the approval. But, without submitting any application before the competent authority for change of classification over the building plan approval, the private respondents have deviated the plan approval and therefore, the Department has issued notices in Form I dated 13.03.2018 and Form II dated 10.04.2018, as per Sections 56 & 57 of Town and Country Planning Act.
15. The learned Standing Counsel further submitted that the private respondents have not responded to the said notices, but the 10th respondent has preferred an appeal under Section 80(A) of the Town and Country Planning Act before the first respondent / Director, Town and Country Planning and the same is pending adjudication.
16. This Court paid it's anxious consideration to the 14/29 http://www.judis.nic.in W.P.(MD)No.1877 of 2016, etc., batch rival submissions and also to the materials placed on record.
17. Admittedly, the Deputy Director, Town and Country Planning, Trichy, has granted approval for the layout vide proceedings dated 16.10.1986, wherein, 48 housing plots, 4 shops and vacant sites, earmarked for Park, Children's playground and open space were allotted. The Srirangam Municipality has also granted subsequent approval for the layout on 06.06.1988.
18. The eighth respondent has taken a ground that as per the layout approved by the Srirangam Municipality, the common area earmarked for the public purpose is on the higher side and there was a delay in getting approval from the Department and moreover, he has already sold all the plots even before he received the plan approval. Therefore, he has submitted a letter 14.06.1988, refusing to accept the layout sanctioned by the Srirangam Municipality. We are not in a position to accept the said contention. When the Srirangam Municipality, the authority empowered with the power of approving the layouts, passed 15/29 http://www.judis.nic.in W.P.(MD)No.1877 of 2016, etc., batch an order, mere objection to the same would not nullify the order, unless or otherwise it is challenged and set aside or modified as per law.
19. It is also the specific stand of the eighth respondent that even before the approval of layout, he has sold most of the plots. The Town and Country Planning Department, Trichy granted approval on 16.10.1986 and the Srirangam Municipality granted approval on 06.06.1988. Thereafter, the eighth respondent has executed several deeds and one such deed dated 24.04.1990 executed by him in favour of one Sengamalam, in respect of Plot No.11 was enclosed in the typedset of papers by the Sangam, wherein, the eighth respondent has mentioned about the approved layout plan. In fact, in the aforesaid sale deed, the Park has been shown as one of the boundaries. Yet another sale deed dated 22.06.1994 executed by the eighth respondent was also annexed in the typedset of papers, wherein, the southern boundary mentioned as Park has been overwritten as Nanjai. But, in yet another sale deed dated 14.12.2017, which was also annexed in the typedset of papers, executed by the eighth respondent in the favour of the eleventh 16/29 http://www.judis.nic.in W.P.(MD)No.1877 of 2016, etc., batch respondent, in respect of the portion, which was originally earmarked as Park, there is no whisper as to the approval granted to the layout.
20. Therefore, it is clear that the eighth respondent has sold the plots in the approved layout by showing the approved plan as well as Sanction issued by the Town and Country Planning Department and Srirangam Municipality and after exhausting the sale of the same, has sold the common areas without mentioning the approval granted. On the one hand, he used the approval for the sale of approved housing plots and on the other, he conveniently suppressed the same for the sale of the common area earmarked for public purpose.
21. Moreover, as rightly pointed out by the Sangam, as per the power of attorney dated 22.12.1986, the eighth respondent was authorized to sell the housing plots alone. However, it is the stand of the eighth respondent that as he has not accepted the layout sanctioned by the Department, he has sold the entire area, which, according to him, are housing plots. But, as stated supra, the eighth respondent has not challenged the approval granted 17/29 http://www.judis.nic.in W.P.(MD)No.1877 of 2016, etc., batch by the competent authority and without doing so, he cannot raise such a plea.
22. To ascertain the actual scenario as to the contention raised by the Sangam with regard to the encroachment made in the common area earmarked for public purpose, this Court, by order dated 23.08.2017, in W.P. (MD)No.13794 of 2016, has appointed an Advocate Commissioner. The Advocate Commissioner has also submitted his report dated 19.09.2017 that some portions of the common area, which were earmarked for public purpose in the layout, have been encroached and some constructions have also been made. He further submitted that the display board erected in the common area showing the Park, Playground, was damaged and uprooted.
23. However, the learned Counsel for the eighth respondent has submitted that it is a private land and they are having valid patta. He has also relied upon the order passed by the Special Tahsildar for Land Settlement, Srirangam, vide proceedings dated 15.05.2013, in No.A2/104/2013, issuing joint patta to the purchasers of 18/29 http://www.judis.nic.in W.P.(MD)No.1877 of 2016, etc., batch the disputed area earmarked as Park and the order passed by the Assistant Settlement Officer (North), Chennai, dated 09.08.2019, confirming the same. Perusal of the order dated 09.08.2019 would show that the Assistant Settlement Officer has confirmed the joint patta issued by the Special Tahsildar on the ground that as per Clause 18 of the approval granted by Town and Country Planning Department, Trichy, dated 16.10.1986, the landlord or their power agent has to execute a deed transferring the rights in respect of the areas earmarked for Park, Playground, Road, to the Srirangam Municipality. However, as per the reply given by Srirangam Municipality, no such deeds were executed in their favour by the landlord, in respect of the disputed property and therefore, the Assistant Settlement Officer has confirmed the order passed by the Special Tahsildar.
24. For better appreciation, Clause 18 & 19 of the approval granted by Town and Country Planning Department, Trichy, dated 16.10.1986 are extracted as under:
“18.kDjhuh; kidg;gphptpd; rhiyfis mikj;J rhiyfisa[k; kidg;gphptpy; cs;s ntW bghpa xJf;fPLfisa[k; (g{q;fh kw;Wk; tpisahLkplk;) cs;shl;rpf;F chpik khw;wk; gjpt[ bra;JbfhLf;f ntz;Lk;.19/29
http://www.judis.nic.in W.P.(MD)No.1877 of 2016, etc., batch my;yJ kDjhuh; kidg;gphptpy; rhiyfSf;fhd ,lk; kw;Wk; kidg;gphptpy; cs;s bghJ xJf;fPLfSf;fhd ,lj;ija[k; cs;shl;rpf;F chpik khw;wk; gjpt[bra;J bfhLg;gJld; mjid mikg;gjw;fhd bryt[jb; jhiffisa[k; cs;shl;rpf;F brYj;j ntz;Lk;.
19.,k;kidg;gphptpy; ,lg;gl;Ls;s epge;jid cld;gof;if K:yk;
mKy;gLj;jg;gly; ntz;Lk;. nkw;go cld;gof;if chpa gjpthsh; mYtyfj;jpy; gjpt[ bra;J> mg;gjpt[ gj;jpu vz; kw;Wk; ehs; Mfpait kidg;gphpt[ cs;shl;rpahy; xg;gj[ y; mspf;fg;gLk; rkak; Fwpg;gplg;gly; ntz;Lk;.”
25. Though it is the case of the eighth respondent that no such deed was executed, the fact remains that subsequent approval was granted by the Srirangam Municipality on 06.06.1988 and neither the approval given by Town and Country Planning Department dated 16.10.1986 nor the sanction issued by the Srirangam Municipality dated 06.06.1988 was challenged in the manner known to law. In the absence of any such challenge made and the same not being set aside or modified, the plea made by the eighth respondent would not stand. In fact, the landlord and / or the power agent have to face action for non- compliance of the conditions stipulated by the Town and Country Planning Department and the Srirangam Municipality 20/29 http://www.judis.nic.in W.P.(MD)No.1877 of 2016, etc., batch authorities for having accorded subsequent sanction on 06.06.1988, without ascertaining as to whether the conditions imposed were complied with or not. However, we are refraining ourselves from making any further observation in this regard as it is not the issue before us. Perusal of records would also show that the suit in O.S.No.1092 of 2011 filed by the members of the Sangam as against the private respondents was dismissed for default, on 15.07.2015.
26. Protection of the environment, open spaces for recreation and fresh air, play grounds for children, and other conveniences or amenities are matters of great public concern and of vital interest to be taken care of in a development scheme. The public interest in the reservation and preservation of open spaces for parks and play grounds cannot be sacrificed by leasing or selling such sites to private persons for conversion to some other user.
27. The Hon'ble Supreme Court, in Bangalore Medical Trust v. B.S. Muddappa, reported in (1991) 4 SCC 54, has 21/29 http://www.judis.nic.in W.P.(MD)No.1877 of 2016, etc., batch held as under:
“36. Public park as a place reserved for beauty and recreation was developed in 19th and 20th century and is associated with growth of the concept of equality and recognition of importance of common man. Earlier it was a prerogative of the aristocracy and the affluent either as a result of royal grant or as a place reserved for private pleasure. Free and healthy air in beautiful surroundings was privilege of few. But now it is a, ‘gift from people to themselves’. Its importance has multiplied with emphasis on environment and pollution. In modern planning and development it occupies an important place in social ecology. A private nursing home on the other hand is essentially a commercial venture, a profit oriented industry. Service may be its motto but earning is the objective. Its utility may not be undermined but a park is a necessity not a mere amenity. A private nursing home cannot be a substitute for a public park. No town planner would prepare a blueprint without reserving space for it. Emphasis on open air and greenery has multiplied and the city or town planning or development Acts of different States require even private house owners to leave open space in front and back for lawn and fresh air. In 1984 the B.D. Act itself provided for reservation of not less 22/29 http://www.judis.nic.in W.P.(MD)No.1877 of 2016, etc., batch than 15 per cent of the total area of the layout in a development scheme for public parks and playgrounds the sale and disposition of which is prohibited under Section 38-A of the Act. Absence of open space and public park, in present day when urbanisation is on increase, rural exodus is on large scale and congested areas are coming up rapidly, may give rise to health hazard. May be that it may be taken care of by a nursing home. But it is axiomatic that prevention is better than cure. What is lost by removal of a park cannot be gained by establishment of a nursing home. To say, therefore, that by conversion of a site reserved for low lying park into a private nursing home social welfare was being promoted was being oblivious of true character of the two and their utility.”
28. In Pt. Chet Ram Vashist v. Municipal Corpn. of Delhi, reported in (1995) 1 SCC 47, the Hon'ble Supreme Court has held as follows:
“6. Reserving any site for any street, open space, park, school etc. in a layout plan is normally a public purpose as it is inherent in such reservation that it shall be used by the public in general. The effect of such reservation is that the owner ceases to be a legal owner of 23/29 http://www.judis.nic.in W.P.(MD)No.1877 of 2016, etc., batch the land in dispute and he holds the land for the benefit of the society or the public in general. It may result in creating an obligation in nature of trust and may preclude the owner from transferring or selling his interest in it. It may be true as held by the High Court that the interest which is left in the owner is a residuary interest which may be nothing more than a right to hold this land in trust for the specific purpose specified by the coloniser in the sanctioned layout plan. But the question is, does it entitle the Corporation to claim that the land so specified should be transferred to the authority free of cost. That is not made out from any provision in the Act or on any principle of law. The Corporation by virtue of the land specified as open space may get a right as a custodian of public interest to manage it in the interest of the society in general. But the right to manage as a local body is not the same thing as to claim transfer of the property to itself. The effect of transfer of the property is that the transferor ceases to be owner of it and the ownership stands transferred to the person in whose favour it is transferred. The resolution of the Committee to transfer land in the colony for park and school was an order for transfer without there being any sanction for the same in law.” 24/29 http://www.judis.nic.in W.P.(MD)No.1877 of 2016, etc., batch
29. A Division Bench of this Court, in Sri Devi Nagar Residences Welfare Association vs. Subbathal and others, reported in 2007 (3) L.W. 259, has held as follows:
“11. The open space in a residential area or in busy townships is treated as lung space of the area. It provides fresh air and refreshment to the persons in the neighbourhood. Its presence ameliorates the hazards of pollution and it has to be preserved and protected for the sustenance of the men around. It is for the health and well- being of the inhabitants of the residential area. The same cannot be bartered for any other purpose. Apart from that, in view of the conditions imposed by the fifth respondent, by his proceedings dated 17.7.1974 addressed to the Executive Officer, Ganapathy Town Panchayat, which remain unchallenged by the owners of the layout land for all these years, the fourth respondent is estopped from using the area set apart as open space, for any other purpose.”
30. Since it is the stand of the Trichy Corporation that they have already initiated action against the private respondents by issuing notices in Form I & II, dated 13.03.2018 & 10.04.2018, respectively, as per 25/29 http://www.judis.nic.in W.P.(MD)No.1877 of 2016, etc., batch Sections 56 & 57 of Town and Country Planning Act, 1971 and that the same has been challenged by the 10th respondent before the Director, Town and Country Planning, which is pending adjudication, this Court, keeping in mind the aforesaid decisions, issues the following directions:
i) The Director, Town and Country Planning, Chennai, is directed to dispose of the appeal filed by the 10th respondent, namely, Irudhaya Soosai, under Section 80(A) of Town and Country Planning Act, 1971, within a period of eight weeks from the date of receipt of a copy of this order.
ii) Thereafter, the second respondent / Tiruchirappalli Local Planning Authority shall take further action, in accordance with law, within a further period of six weeks.
iii) Insofar as W.P.(MD)Nos.13794 of 2016 & 17332 of 2017 are concerned, it is their case that without issuing any notice, the impugned order permitting the Sangam to put up display board in the disputed area was passed by the Assistant Commissioner, Srirangam Zone, Tiruchirappali. Since a direction was already issued to the Director, Town and Country Planning, Chennai as well 26/29 http://www.judis.nic.in W.P.(MD)No.1877 of 2016, etc., batch as to the Tiruchirappali Local Planning Authority; the Assistant Commissioner, Srirangam Zone, Tiruchirappali shall defer any action for a period of four months from the date of receipt of this order and thereafter, pass appropriate orders after putting all the parties on notice.
31. With the above observations and directions, all the writ petitions are disposed of. No costs. Consequently, connected miscellaneous petitions are closed.
[M.S.N.J.,] [ B.P.J.,]
28.11.2019
Index : Yes / No
Internet : Yes
gk
To
1.The Director of Town and Country Planning, No.807, Anna Salai, Chennai – 2.
2.The Chairman / Member Secretary, Tiruchirappalli Local Planning Authority, No.71, William's Road, Melapudur, Sangiliyandapuram, Tiruchirappalli.
27/29 http://www.judis.nic.in W.P.(MD)No.1877 of 2016, etc., batch
3.The District Collector, Tiruchirappalli District.
4.The Commissioner of Tiruchirappalli, City Municipal Corporation, Tiruchirappalli.
5.The Assistant Commissioner, Srirangam Zone, Tiruchirappalli City Municipal Corporation, Srirangam, Trichy – 6.
6.The Revenue Divisional Officer, Srirangam, Tiruchirappalli District.
7.The Tahsildar, Srirangam, Tiruchirappalli District.
28/29 http://www.judis.nic.in W.P.(MD)No.1877 of 2016, etc., batch M.SATHYANARAYANAN, J., and B.PUGALENDHI, J., gk Pre delivery order made in W.P.(MD) Nos.13794 of 2016, 17332 & 17457 of 2017 28.11.2019 29/29 http://www.judis.nic.in