Madras High Court
Raja Rajeswari Nagar Residents' vs Government Of Tamil Nadu on 4 March, 2002
Author: A.K. Rajan
Bench: A.K. Rajan
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 4/3/2002
CORAM
THE HONOURABLE MR.JUSTICE A.K. RAJAN
W.P.NO. 18567 OF 1994 and W.M.P.NO. 28204 OF 1994
Raja Rajeswari Nagar Residents'
Association, rep. by its
Secretary Dharmaraj Jacob,
Raja Rajeswari Nagar, Palayamkottai. .. petitioner
vs.
1.Government of Tamil Nadu,
rep. by its Secretary,
Municipal Administration and
Water Supply Department,
Fort St.George, Madras-600 009.
2.The Director,
Town & Country Planning Department,
807 Anna Salai, Madras-600 002.
3.The Zonal Officer,
Palayamkottai Zone,
Tirunelveli Municipal Corporation.
4.S.S.T.Subramanian
5.S.A.S. Alagappa Chettiar .. respondents
Petition filed under Article 226 of Constitution of India,
praying for issuance of a writ of certiorari, as stated within.
For petitioner: Mr.A.K. Kumaraswamy
For respondents: Mr.M.Liyaghat Ali,AGP
for RR 1 & 2
Mr.A.L.Somayaji,
Senior Counsel for
M/s.Peppin Fernando for
RR4 & 5
Mr.G.Sankaran for R3
:ORDER
The petitioner/Association has filed the above writ petition seeking to issue a writ of certiorari, calling for the records of the first respondent in its proceedings in G.O. Ms.(T) No.115, dated 22-6-1994 and quash the same.
2.The petitioner is an Association registered under the Societies Registration Act at Raja Rajeswari Nagar, Palayamkottai. The Power Agents of the original owners of lands, who are the respondents 4 and 5, applied to the third respondent/Municipal Corporation for permission to form an approved residential lay-out. The third respondent, with the concurrence of the second respondent, approved the lay-outs bearing L.P/R(TK)20/85 and L.P/R(TK)15/86. As a condition for approving the lay-outs, the second respondent directed the promoters, namely, the respondents 4 and 5 to hand over the public areas such as parks and other open space earmarked for public purpose to the third respondent/Municipal Corporation as per the Tamil Nadu Town and Country Planning Act, 1971. Though the promoters were so directed, they did not do so. The third respondent did not take any step to recover the same. The members of the petitioner/Association had put up a park, playground for children, badminton court and a stage for community meetings. While so, the respondents 4 and 5 approached the first respondent for permission to put up a kalyana mandapam in the area earmarked as common open space in the approved lay-out of the Raja Rajeswari Nagar. The petitioner/Association caused a lawyer's notice to be issued to the third respondent requesting not to grant any such permission to the respondents 4 and 5. The third respondent, in his communication dated 8-9-1994, informed the petitioner that the first respondent had granted permission to the respondents 4 and 5 to put up a community mandapam in the open area of the approved lay-out of Raja Rajeswari Nagar. On a further enquiry, the petitioner/Association came to know that the first respondent, by way of the impugned order, granted permission to the respondents 4 and 5 to put a community hall in the open space area earmarked in the approved lay-out Nos.20/85 and 15/86 and that the impugned order of the first respondent is illegal and hence, the same is liable to be quashed.
3.In the counter affidavit filed by the second respondent, denying among other averments of the petitioner/Association, it is stated that as per the lay-out conditions, the roads in the lay-outs alone were handed over to the local body by means of a gift deed, but the park and the open space in the two lay-outs were not handed over to the local body, that according to the sanctioned plan, the applicant has to hand over the area reserved for road and park to the local body through the registered gift deed as per lay-out conditions, that there was a dias and a badminton court in the site under reference as stated by the petitioner, that on the application from the respondents 4 and 5, the first respondent issued the impugned order to convert 81 cents of land reserved already for public purpose in the lay-out Nos.20/85 and 15/86 into a community hall, that the extent of the converted land is 260' x 136', that the excess land of 71.20 cents available for public purpose should be handed over to the local body through a gift deed as per the Government Order, that the local body should permit the respondents 4 and 5 to construct the community hall only after obtaining from them the excess land of 71.20 cents through a gift deed, that the respondents 4 and 5 have not yet handed over the land to the local body and no approval was given to the owners of the land to construct the community hall, that the park and the open space do not vest with the local municipal authority as the same has not been gifted to the Municipality, that no notice was required to be served on anybody regarding the conversion of lay-out reservations, that Section 167(3) of the Tamil Nadu District Municipalities Act, 1920 stipulates that within 60 days after receipt of any application under subsection (1), the Council, shall, either sanction the making of the street on such "conditions" as it may think fit or disallow it, or ask for further information with respect to it, that accordingly, a condition was enforced and that that the lay-out was approved in 1986 while the Tirunelveli was a Municipality and not Municipal Corporation.
4.In the counter affidavit filed by the third respondent, denying among other averments of the petitioner/Association, it is stated that the members of the petitioner/Association have put up a dias platform to conduct meetings, etc., and the ground is being utilised as badminton yard, that on application from the respondents 4 and 5, the first respondent passed the impugned order for conversion of the land to community hall, that the excess land of 71.20 cents available for the public purpose should be handed over to the Municipality as per the Government Order, that it is yet to be handed over by the respondents 4 and 5, that the park and open space are not vested with local municipal authority as the same have not been gifted to the Municipality, that the first respondent has power to issue suitable orders, that there is a provision regarding conversion of lay-out reservation that if any land referred for a particular purpose has no demand for five years for the purpose for which it was allotted, the usage of the land can be converted by the competent authority and that no notice is required to be served on anybody regarding the conversion of the lay-out reservations.
5.In the counter affidavit filed by the respondents 4 and 5, denying among other averments of the petitioner/Association, it is stated that they have applied for lay-out and the lay-out plan was sanctioned by the authorities, that they have applied for construction of community hall and permission has been granted on 22-6-1994, that the area of the community hall is only 260' x 136', that there will not be any hardship to the members of the petitioner/Association, that there would not be any violation of the relevant Acts and Rules, that originally, the respondents 4 and 5 prayed for permission to construct kalyana mandapam, that subsequently, they prayed for permission to construct community hall, that the Government, after taking all matters into consideration, granted permission to these respondents to construct the community hall, that there is no flaw or illegality in granting such permission, that it is not correct to say that the entire open area earmarked for public purpose in the developed area vests with the local municipal authority, that it is also not correct to state that the promoters have no right to put any private construction and that the Government has got power to grant permission or exemption and that such a right cannot be questioned at all.
6.Learned counsel for the petitioner/Association submitted that when the lay-out is sanctioned and in the sanctioned plan, certain portion is shown as vacant space for public purpose or for public use, it shall be maintained as such, and it cannot be altered thereafter to the detriment of the purchasers of the plot within the lay-out. In support of that contention, learned counsel for the petitioner/ Association relied upon a judgement of this Court reported in GOPALAKRISHNAN, M.R. VS. SPECIAL OFFICER, CORPORATION, TIRUCHY AND OTHERS (1996 (1) L.W.
397), wherein, this Court has held that though technically, ownership of the land vests with the promoters, this ownership is subject to the permanent easement, viz., as contained in the conditions laid down by the Srirangam Municipality which granted lay-out and one of the conditions is that the space reserved for the playground shall be kept as playground and shall not be used for any other purpose, that therefore, the Corporation authorities are within their right to enforce the conditions in the lay-out sanction and the petitioner therein and other co-owners are bound to comply with the same, that if infringement is caused, it is also the duty of the first respondent therein to see that the conditions imposed in the lay-out are strictly enforced and if any violation is committed by any co-owner, the Government shall take appropriate steps to prevent such violations of the conditions of the lay-out. It is further held in that decision that the restrictive covenants regarding the user of the land or building are imposed by statutory authorities for sanctioning planning permission for lay-out of the site and building permiss ion by virtue of power given under various enactments regarding use of particular land or building in a particular area in public interest with reciprocal obligations, that such restrictions or covenants should be regarded as equitable burden on use of land or building by virtue of building scheme or scheme of development under various enactments like the Tamil Nadu Town and Country Planning Act, 1971, the District Municipalities Act, 1920 and the Madras City Municipal Corporation Act, 1919 and annex them to land or building as appurtenances so as to bind all successors-in-title and successive owners of the land or building.
7.Learned counsel for the petitioner also relied on a decision of this Court reported in MADRAS DIVISIONAL RAILWAY STAFF CO-OP. BUILDING SOCIETY LTD., VS. CORPORATION OF MADRAS AND ANOTHER (1999 (3) L.W. 75
3), wherein, this Court held as follows:-
"It has become the order of the day by the public authorities in putting up construction in the public places earmarked for some other purpose. When under the sanctioned lay-out, the place is earmarked for a particular purpose, a duty is cast upon the public authorities to see that the place is utilised only for that purpose. The open space is insisted while sanctioning the lay-out, taking into consideration of the environment of the entire area and requirement of free air and light for the residents. When the owner of the property seeks sanction of the lay-out, he is forced to leave that much of open space for the convenience of those, who are going to purchase the plots and the authorities have to maintain the same. The purchases, who are satisfied with the lay-out are purchasing the plots with the legitimate expectation that the sanctioned lay-out will be maintained as it is. Only in order to prevent the owner of the land to misuse the open spaces earmarked for some other purposes, the owner is compelled to execute a gift deed in favour of the municipality or the Corporation as the case may be. When that be the case, the municipality or the Corporation is also expected to maintain the lay-out as it is without interfering with the open space. As it has been held in the case of Pt. Chet Ram Vashist vs. Municipal Corporation of Delhi (1995 (1) S.C.C. 47), the public authority is only a custodian in respect of the land gifted by the owner.
8.Learned counsel for the petitioner also relied on a decision of the Supreme Court reported in G.N.KHAJURIA VS. DELHI DEVELOPMENT AUTHORITY (AIR 1996 SC 253), wherein, in the head-note itself, it is referred that the lay-out plan for the residential colony and allotment of land to school which was part of park is liable to be cancelled and the fact that at the allotted site, permanent structure was put on by the authorities is not relevant and the plea that dislocation from site would cause difficulty to tiny tots also cannot be allowed and that such an allotment was considered unauthorised.
9.Learned counsel for the petitioner also relied on a decision of the Supreme Court reported in BANGALORE MEDICAL TRUST VS. B.S. MUDDAPPA (AIR 1991 SC 1902) wherein, when the public park was converted into a private nursing home, that was set aside.
10.Thus, relying on the abovesaid decisions, learned counsel for the petitioner argued that as per the conditions of the lay-out, the place has to be maintained as open space and it cannot be used for any other purpose than the one for which it was specifically earmarked.
11.Learned counsel appearing for the Corporation submitted that even though as per the lay-out, the property ought to have been gifted to the Corporation, it has not been done so. Learned counsel for the Corporation further submits that as per the Government Order, the respondents 4 and 5 have got the right to construct the community hall.
12.Learned Senior Counsel Mr.Somayaji, appearing for the respondents 4 and 5 submitted that the Government has got authority to grant any exemption from the sanctioned plan as per the Town and Country Planning Act. Exercising that power, the Government has decided and permitted the respondents 4 and 5 to put up the community hall in the part of the space meant to be kept as open space and directed only the remaining portion to be handed over to the Corporation. This is within the powers of the Government and the Government is the ultimate authority to decide with regard to the grant of exemption from the Town and Country Planning Act. Therefore, learned Senior Counsel argued that there is nothing illegal in the grant of permission to the respondents 4 and 5 to put up the community hall in a portion of the vacant space as per the sanctioned plan. Therefore, learned Senior Counsel submitted that the writ petition is devoid of merits and hence, the same is liable to be dismissed.
13.When a lay-out is approved, it is approved subject to certain conditions specified under the relevant Acts and Rules, the lay-out will not be sanctioned unless those conditions are fulfilled. If a layout is sanctioned in violation of those rules, that is liable to be set aside as not in conformity with the relevant Acts and Rules.
14.Insofar as the prospective purchasers of the plots mentioned in the lay-out are concerned, the promoters through the sanctioned plan gives an offer and one of the conditions of offer is that the sanctioned lay-out will be maintained as such, and the space that is earmarked as public space or open space for park and road, shall be maintained as such for ever. There will not be any violation to those conditions. When the prospective purchasers purchased those plots in the lay-out, they accept these promise extended by the promoters or owners, as the case may be, and on that strength of the promise, they purchased the plots. Though technically, as held by the Apex Court, the Municipality did not become the owner of such area, since the vacant space has not been handed over to the Municipality as per the conditions imposed in the lay-out, still, all the purchasers of the plot within the lay-out have a community of interest in keeping over this vacant area and they have a common interest in keeping that area as vacant space for ever. The promissory estoppel had been extended by the promoters; and they cannot go back on that promise and cannot violate and infringe the promise given to the purchasers. The purchasers of the plot would not have purchased those plots had they knew that this area would not be kept as open area and it is likely to be constructed as buildings in future. Therefore, when the sanctioned plan specifically prescribes a condition that it shall be handed over to the Municipality by gift deed, the promoters or the owners ought to have executed a gift deed and transferred their right in favour of the Municipalities. Merely because of their own failure to transfer the properties, they cannot take advantage of that fact and apply for permission for putting up any other construction in the vacant space as per the sanctioned plan. Therefore, the plot owners have right to protect their interest in the sense that all the plot owners jointly have the community of interest over this vacant space, park, etc., in maintaining that area as specified in the sanctioned plan. Therefore, the impugned order of the Government permitting the respondents 4 and 5 to put up the community hall is not legal and valid, as the property does not belong either to the promoters or to the land owners and the same has to be handed over to the Municipality by way of gift deed, as this area is subjected to a covenant that it shall be kept as vacant land for ever. Therefore, the Government has no authority or right under the relevant Acts or Rules to alter the condition of lands.
15.Learned Senior Counsel appearing for the respondents 4 and 5 also submitted that the members of the petitioner/Association also have got no right to put up any construction such as dias, etc. This argument is acceptable and the members of the petitioner/Association also have no right over the property to put up any construction.
16.With the above observations, the writ petition is allowed. No costs. Consequently, W.M.P. No.28204 of 1994 is closed.
4-3-2002 Index: Yes/no Internet: Yes cs To
1.Government of Tamil Nadu, rep. by its Secretary, Municipal Administration and Water Supply Department, Fort St.George, Madras-600 009.
2.The Director, Town & Country Planning Department, 807 Anna Salai, Madras-600 002.
3.The Zonal Officer, Palayamkottai Zone, Tirunelveli Municipal Corporation.