Madras High Court
S.Ramasamy vs The Commissioner on 6 November, 2023
Author: S.M.Subramaniam
Bench: S.M.Subramaniam
W.P.(MD)No.13772 of 2023
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 06.11.2023
CORAM:
THE HONOURABLE MR.JUSTICE S.M.SUBRAMANIAM
AND
THE HONOURABLE MR.JUSTICE V.LAKSHMINARAYANAN
W.P.(MD)No.13772 of 2023
and W.M.P.(MD) Nos.11595 and 15268 of 2023
S.Ramasamy ... Petitioner
Vs.
1.The Commissioner,
Thoothukudi Corporation,
Thoothukudi.
2.The Deputy Director,
Town and Country Planning Department,
Thoothukudi. ...Respondents
PRAYER: Petition filed under Article 226 of the Constitution of India, to issue a
Writ of Mandamus, to forbear the respondent Corporation from taking forcible
possession of the plot earmarked children playground in Survey Nos.340/1A and
340/1B, comprised in the layout approved under DTCP No.1006/1992 in
Meelavittan Village, Thoothukudi Taluk and District.
For Petitioner : Mr.G.Prabhu Rajadurai
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For Respondents : Mr.N.Anandakumar
Standing Counsel for R1
Mr.Veera Kathiravan,
Additional Advocate General
assisted by Mr.S.P.Maharajan,
Special Government Pleader for R2
ORDER
(Order of the Court was made by S.M.SUBRAMANIAM, J.) The Writ of Mandamus has been instituted to forbear the respondent Corporation from taking forcible possession of the plot earmarked for children playground in Survey Nos.340/1A and 340/1B, comprised in the layout approved under DTCP No.1006/1992 in Meelavittan Village, Thoothukudi Taluk and District.
2. The cause arose for institution of the writ proceedings mainly on the ground that the Corporation authorities have taken over the play ground area and started fencing. Thus, the petitioner has chosen to file the present Writ Petition.
3. The petitioner states that he owns property measuring 39.85 Acres (1,61,336 sq.m) in Survey Nos.228/1, 2, 340/1A, 1B, 343/1, 344/1, 345/1, 352/1, 361/B2C in Meelavittan Village, Thoothukudi Taluk and District. Presently, the 2/17 https://www.mhc.tn.gov.in/judis W.P.(MD)No.13772 of 2023 subject property falls within the territorial jurisdiction of Thoothukudi Corporation. Admittedly, the petitioner submitted an application to approve the layout, which was granted in conformity with the development control regulations as existed then. 445 house sites were formed, besides that, the layout provides plots for communal and recreational purposes for more than 10% of the total area.
4. Learned counsel for the petitioner mainly contended that the roads and park areas were already gifted in favour of the Corporation but the playground earmarked was not gifted in favour of the Corporation and thus, the petitioner continued to be the owner of the land earmarked for playground in the layout. Since the petitioner is the owner of the area earmarked as playground and they are running a school they intend to maintain the said play ground for the benefit of the school situate adjacent to the playground.
5. Learned counsel for the petitioner states that the Corporation is not the owner of the property since the said area was not gifted in their favour. Therefore, they have no authority to fence the playground and it should be kept open for the usage of the people of that locality.
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6. In support of the said contention, the learned counsel relied on the judgment of the Hon'ble Supreme Court in the case of PT.Chet Ram Vashist v. Municipal Corporation of Delhi reported in (1995) 1 SCC 47, wherein the Apex made the following observations at para 6, which reads as under:-
“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 4/17 https://www.mhc.tn.gov.in/judis W.P.(MD)No.13772 of 2023 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.”
7. Relying on the findings, the learned counsel emphasized that the right to manage the local body is not the same thing as to claim transfer of property to itself. The effect of transfer of the property is that the transferor seizes to be the owner and the ownership stands transfers to the person in whose favour it is transferred. In the present case no such transfer of property took place and therefore, the Corporation has no locus standi to construct compound walls in respect of the land earmarked as playground
8. Learned Additional Advocate General opposed the said contention by stating that the approved plan itself is unambiguous that the playground is earmarked for the benefit of the people of that locality and there was a condition to gift the said land by the erstwhile owner of the property. The conditions stipulated along with the layout approval reads as under:-
“g{q;fh> rpWth; tpisahLkplk;> jpwbtsp> E}yfk;> thfd rhiy nghd;witfSf;fhf xJf;fg;gl;l kidfis tl;lhlrpah; mYtyfj;jpy; cl;gphpt[ bra;J cs;shl;rpaplk; jhdkhf xg;gilf;f ntz;Lk;.” 5/17 https://www.mhc.tn.gov.in/judis W.P.(MD)No.13772 of 2023 It is an undertaking given by the writ petitioner and the condition imposed to execute gift deed in favour of the Corporation. However, the writ petitioner failed to comply with the conditions stipulated and therefore, he cannot turn around and file a Writ Petition, seeking the relief to forbear the Corporation from fencing the playground, which is to be utilized for the benefit of the people residing in that locality.
9. Learned Additional Advocate General drew our attention with reference to the proceedings of the Commissioner, Corporation dated 18.06.1993, wherein the Commissioner, Corporation insisted upon the petitioner to execute the gift deed as per conditions stipulated in the layout approval proceedings and therefore, the petitioner is not entitled for the relief.
10. In support of the said contention, the learned Additional Advocate General relied on the judgment of the Division Bench of this Court in W.P.(MD) No.15668 of 2013, dated 12.12.2018, wherein the following observations are made:-
“13. It is an admitted fact that the Association purchased 62 acres of land, wherein they have constructed the Central Market in 15 6/17 https://www.mhc.tn.gov.in/judis W.P.(MD)No.13772 of 2023 acres and the balance 47 acres were sold to the public along with the site plan issued with the sale deed. The Association submitted the site plan before the Town and Country Planning Authorities and the Authorities directed the petitioner Association to file an undertaking to comply with the various conditions stated in the letter of the Corporation dated 26.11.2007. It is also admitted fact that the petitioner Association vide letter dated 10.12.2007 filed an undertaking to the Town and Country Planning Authorities and undertakes to gift the 60 feet and 40 feet road to the Panchayat by virtue of clause No.10 as stated above in paragraph No.2.3, which is once again stated below:
“10.Open space Reservation gFjpfs; kw;Wk;
mtw;wph;fhf ghijahf fhl;lg;gl;Ls;s cj;njr rhiyfs; (roads leading to open space reservation)Mfpait cs;shl;rpf;F jhdkhf xg;gilg;nghk; vd;W cWjp Twfpnwhk;. nkYk; open space reservation gFjp rq;fj;jhy; cs;shl;rp mDkjpa[ld; guhkhpf;f xg;g[f;bfhs;fpnwhk;” ...
15. After accepting the undertaking filed by the petitioner Association, the Town and Country Planning Authorities have approved the site, vide order dated 12.03.2008. As per the approved site plan, there are roads in 60 feet and 40 feet. As far as the 40 feet road is concerned, the petitioner Association had already handed over the same as per the undertaking by way of Gift Deed to the Panchayat.
16. Therefore, the main issue for consideration in these writ petitions is only 60 feet road. The petitioner Association is liable to hand 7/17 https://www.mhc.tn.gov.in/judis W.P.(MD)No.13772 of 2023 over the same as per its undertaking dated 10.12.2007 to the Panchayat/Corporation, Madurai. There is no doubt that there was an undertaking by the petitioner Association to hand over the 60 feet and 40 feet roads and the Association had already handed over the 40 feet road and as per the undertaking, the Association is yet to hand over, only 60 feet road, to the Corporation. Therefore, in our considered view, the Association cannot be allowed to “approbate and reprobate” by first agreeing to abide by terms and conditions and later seeking to deny its liability as per the agreed terms.
...
20. Further, when the petitioner Association gave an undertaking that the 60 feet and 40 feet road would be made accessible for the public use and for the use of the plot owners of 47 acres of land, which was sold by the Association to various persons, now they cannot go back and say that it is not for the general public and only for the private plot owners. Therefore, we hold that any construction in 60 feet and 40 feet road by the Association is an encroachment and the same is liable to be evicted.”
11. Relying on the above findings, the learned Additional Advocate General reiterated that the Corporation has to maintain the playground as per the layout approval for the benefit of the people of that locality, including the children studying in the school. Unless the playground is fenced, there is no safety or 8/17 https://www.mhc.tn.gov.in/judis W.P.(MD)No.13772 of 2023 security for the children, who are all utilizing the playground and in the event of handing over of the playground in favour of an individual, there is possibility of mis-utilizing the same and thus, the Writ Petition is to be rejected.
12. We have considered the rival submissions.
13. In a recent judgment of the Hon'ble Supreme Court in the case of Association of Vasanth Apartments' Owners v. Gopinath and others [(2023) 4 MLJ 353 (SC)], the principles and the provisions of the Tamil Nadu Town and Country Planning Act, 1971 have been elaborately considered by the Apex Court and the following observations, which all are relevant are extracted hereunder:
“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 9/17 https://www.mhc.tn.gov.in/judis W.P.(MD)No.13772 of 2023 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 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 10/17 https://www.mhc.tn.gov.in/judis W.P.(MD)No.13772 of 2023 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) 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 Karnataka [(2011) 7 MLJ 1185]:
“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 11/17 https://www.mhc.tn.gov.in/judis W.P.(MD)No.13772 of 2023 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 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.” ...12/17
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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 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 13/17 https://www.mhc.tn.gov.in/judis W.P.(MD)No.13772 of 2023 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 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 pre- emptive 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.” 14/17 https://www.mhc.tn.gov.in/judis W.P.(MD)No.13772 of 2023
14. It is not in dispute that the layout had been approved by the competent authority. As per the approval, a portion of the land was earmarked as playground for the benefit of the people of that locality and the playground is to be utilized only as playground and the Corporation has no power to change its character.
15. Admittedly, a condition was imposed along with the approval that the erstwhile owner should execute the gift deed in favour of the local authority and the said condition has not been fully complied by the petitioner and the gift deed was executed only in respect of the park and roads and therefore, the petitioner has failed to comply with the conditions stipulated in the layout approval proceedings. More so, the Corporation being the authority has to provide public infrastructural facilities and the very purpose of earmarking the common areas are for the maintenances of park, school, temple, church, playground etc., and the same is to be protected and maintained by the local authority for the purpose for which it was allotted and that being the legal position, the petitioner has not established any acceptable ground for the purpose of granting the relief as such sought for in the present Writ Petition. Thus, we are convinced that the petitioner himself failed to comply with the conditions stipulated in the layout 15/17 https://www.mhc.tn.gov.in/judis W.P.(MD)No.13772 of 2023 approval proceedings. Therefore, the Corporation has to maintain the playground by properly protecting it for the benefit the people of that locality, including the school children, who are studying in the adjacent school or any other nearby school.
16. With these observations, this Writ Petition stands dismissed. No costs. Consequently, connected Writ Miscellaneous Petitions are closed.
(S.M.S., J.) & (V.L.N., J.)
06.11.2023
NCC : Yes / No
Index : Yes / No
SJ
To
1.The Deputy Director,
Town and Country Planning Department,
Thoothukudi.
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W.P.(MD)No.13772 of 2023
S.M.SUBRAMANIAM, J.
AND
V.LAKSHMINARAYANAN, J.
SJ
W.P.(MD)No.13772 of 2023
06.11.2023
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