Madras High Court
Usha Rani @ Meenakshi vs The Commissioner on 7 June, 2011
Author: K.Chandru
Bench: K.Chandru
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 07.06.2011 CORAM THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.NOs.27173, 28434 and 28435 of 2010 and 321 of 2011 and M.P.No.1,1 and 1 of 2010 and 1 of 2011 Usha Rani @ Meenakshi .. Petitioner in W.P.No.27173 of 2010 T.Bhuvaneswari .. Petitioner in W.P.No.28434 of 2010 K.Harikrishnan .. Petitioner in W.P.No.28435 of 2010 D.T.Arutcivaneri .. Petitioner in W.P.No.321 of 2011 Vs. The Commissioner, Corporation of Vellore, Vellore District. .. Respondent in all writ petitions All these writ petitions are preferred under Article 226 of the Constitution of India praying for the issue of a writ of certiorari to call for the records relating to the impugned notice dated 12.11.2010 vide Na.Ka.No.1141/10/F-1 issued by the respondent and to quash the same as illegal, arbitrary and against the principles of natural justice. For Petitioners : .Mr.C.P.Sivamohan in all writ petitions For Respondents : Mr.V.R.Thangavelu in W.P.Nos.27173, 28434 & 28435 of 2010 Mr.L.S.M.Hasan Fizal, GA in W.P.No.321 of 2011 - - - - COMMON ORDER
These four writ petitions are filed by the petitioners challenging the notices issued by the Commissioner of Corporation, Vellore in terms of Sections 254 and 255 of the (Vellore) Coimbatore City Municipal Corporation Act, 1981 as made applicable to Vellore Corporation.
2.By the impugned notices, an attention of the petitioners was drawn to the fact that the petitioners were having layouts and after formation of layouts, they have not entrusted with the Corporation the Open Space Reservation for school and play ground. They were asked to entrust the space reserved for open space within a period of 7 days, failing which the Corporation had threatened action in terms of Sections 254 and 255 of the (Vellore) Coimbatore City Municipal Corporation Act. They were also informed that after getting the consent from the residents, the Corporation will have no hesitation to take over those plots.
3.In the first writ petition, notice of motion was ordered on 1.12.2010 and an interim stay was granted. In W.P.Nos.28434 and 28435 of 2010, similar orders were also made. In the fourth writ petition, i.e., W.P.No.321 of 2011, this Court admitted the writ petition and also had granted an interim order on the ground that the place earmarked for public purpose continues to remain for the same purpose and was not utilized for any other purpose.
4.The stand of the petitioners in all the writ petitions were that they were promoters and layouts were formed in their ancestral lands. They had sold various pieces of lands to various individuals. While obtaining layouts, they had allotted provisions for school and play grounds. While forming layouts, no conditions were imposed for entrusting the open space for school and play ground. It is also stated that the impugned notices were contrary to the provisions of the City Municipal Corporation Act.
5.Mr.C.P.Sivamohan, learned counsel for the petitioners also submitted that the Directorate of Town and Country Planning by a communication, dated 12.01.1982 had informed the Municipal Commissioner that there is no provision in the Tamil Nadu District Municipalities Act directing the promoters who had obtained layout permission, to gift the open space land meant for public purpose and the lands which were earmarked for the purpose for which they were earmarked should be continued to maintain for the same purpose by the land owner and that the Commissioner was informed accordingly.
6.On taking notice on these writ petitions, the counsel for the respondent submitted that the stand taken by the petitioners was not valid. Under Section 47 of the Tamil Nadu Town and Country Planning Act, 1971, after coming into operation of development plan in any area, no person other than the State, Central or local authorities shall use or caused to be use any land or carry out any development in the area otherwise than in conformity with such development plan. The State Government had framed regulations in respect of developments.
7.The learned counsel for the petitioners placed heavy reliance upon a judgment of the Supreme Court in Pt.Chet Ram Vashist Vs. Municipal Corporation of Delhi reported in 1995 (1) SCC 47 for contending that there was no necessity to hand over the open space meant for school by transferring the ownership free of cost and it is not permissible under law. By such method, the right and title cannot be created in favour of the local body. It is necessary to refer to the following passages found in paragraphs 4 to 6 and 8, which reads as follows:
"4.......The resolution passed by the Corporation directing the appellant to transfer the space reserved for tubewells, school and park in its favour free of cost was depriving the owner of his property and vesting it in the Corporation against law. The finding of the High Court that such condition did not amount to transfer of ownership but it was only a transfer of the right of management cannot be accepted. The two rights, namely, of ownership and of management, are distinct and different rights. Once a vacant site is transferred in favour of another free of cost then the person transferring it ceases to be owner of it. Whereas in transfer of right of management the ownership continues with the person to whom the property belongs and the local authority only gets rights to manage it. But the conditions imposed by the Standing Committee clearly meant to transfer the ownership in favour of the Corporation. The Corporation as custodian of civil amenities and services may claim and that would be proper as well, to permit the Corporation to regulate, manage, supervise and look after such amenities but whether such a provision can entitle a Corporation to claim that such property should be transferred to it free of cost appears to be fraught with insurmountable difficulties. The law does not appear to be in favour of the Corporation. Public purpose is, no doubt, a very important consideration and private interest has to be sacrificed for the welfare of the society. But when the appellant was willing to reserve the two plots for park and school then he was not acting against public interest. This cannot be stretched to create a right and title in favour of a local body which utmost may be entitled to manage and supervise only.
5....There is no provision in this chapter or any other provision in the Act which provides that any space reserved for any open space or park shall vest in the Corporation. Even a private street can be declared to be a public on the request of owners of the building and then only it vests in the Corporation. In absence of any provision, therefore, in the Act the open space left for school or park in a private colony cannot vest in the Corporation. That is why in England whenever a private colony is developed or a private person leaves an open space or park to be used for public purpose he is required to issue what is termed as Blight Notice to the local body to get the land transferred in its favour on payment of compensation. Section 313 which empowers the Commissioner to sanction a layout plan, does not contemplate vesting of the land earmarked for a public purpose to vest in the Corporation or to be transferred to it. The requirement in law of requiring an owner to reserve any site for any street, open space, park, recreation ground, school, market or any other public purposes is not the same as to claim that the open space or park so earmarked shall vest in the Corporation or stand transferred to it. Even a plain reading of sub-section (5) indicates that the land which is subject-matter of a layout plan cannot be dealt with by the owner except in conformity with the order of the Standing Committee. In other words the section imposes a bar on exercise of power by the owner in respect of land covered by the layout plan. But it does not create any right or interest of the Corporation in the land so specified. The resolution of the Standing Committee, therefore, that the area specified in the layout plan for the park and school shall vest in the Corporation free of cost, was not in accordance with law.
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 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.
8.For these reasons even though the judgment and decree of the High Court are liable to be set aside but we refrain from doing so. Yet in order to protect interests of the owners of house and residents of the colony it is directed that the order of the High Court shall stand modified to the following effect :
(1)The Corporation shall have right to manage the land which was earmarked for school, park etc. (2)The Corporation shall not have any right to change the user of land which shall be for beneficial enjoyment of the residents of the colony.
(3)It is left open to the Corporation to get the land transferred in its favour after paying the market price as prevalent on the date when the sanction to the layout plan was accorded."
8.Further, in the light of the observations in paragraph 8.1, the respondent Corporation is entitled to maintain the open space as open space for the purpose for which it was earmarked, i.e., for locating school or maintaining park etc.
9.In New Delhi Municipal Council and others Vs. Tanvi Trading and Credit (P) Ltd., and others reported in (2008) 8 SCC 765, the Supreme Court held that the High Court must consider the public policy, guidelines, directions, statutory mandates while directing sanction of building plan. In following passage found in paragraph 39 of the said judgment, the Supreme Court held that approval for a building plan is only the date on which the approval was granted:-
"39.It is well settled that the law for approval of the building plan would be the date on which the approval is granted and not the date on which the plans are submitted. This is so in view of para 24 of the decision of this Court in Usman Gani J. Khatri v. Cantonment Board1. It would not be out of place to mention that on 7-2-2007, the Master Plan, 2021 has been approved in which the LBZ guidelines have been incorporated and since the plan submitted by the respondents was not approved up to the date of coming into force of Master Plan of 2021, the LBZ guidelines will apply with full force to the plan submitted by the respondents and the plan which is contrary to the LBZ guidelines could not have been directed to be sanctioned."
10.Further, the Supreme Court in Howrah Municipal Corporation v. Ganges Rope Co. Ltd., reported in (2004) 1 SCC 663 held that sanction to building plans have to be governed by statutory provisions, which are intended to ensure proper administration and to provide civic amenities. The following passage found in paragraph 17 of the said judgment may be usefully extracted below:
"17.The subject of sanction of construction is governed by the provisions of the Act, Rules and Regulations as also the resolution of the Corporation which was taken with the approval of the Mayor-in-Council. The statutory provisions regulating sanction for construction within the municipal area are intended to ensure proper administration of the area and provide proper civic amenities to it. The paramount considerations of regulatory provisions for construction activities are public interest and convenience. On the subject of seeking sanction for construction, no vested right can be claimed by any citizen divorced from public interest or public convenience.
11.Therefore, the attempt by the petitioners to stall handing over the open space provided in the layouts to the Corporation for better management is clearly illegal and that as held by the Supreme Court, there cannot be any transfer of ownership.
12.In the light of the above, all the writ petitions will stand dismissed. However, there will be no order as to costs. Consequently, connected miscellaneous petitions stand closed.
07.06.2011 Index : Yes Internet : Yes vvk To The Commissioner, Corporation of Vellore, Vellore District.
K.CHANDRU, J.
vvk PRE DELIVERY ORDER IN W.P.NOs.27173, 28434 and 28435 of 2010 and 321 of 2011 07.06.2011