Madras High Court
Agrini Enclave Houses And vs State Of Tamil Nadu
Author: B.Pugalendhi
Bench: B.Pugalendhi
WP(MD)No.8630 of 2009
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
RESERVED ON:29.04.2022
PRONOUNCED ON: 20.10.2023
CORAM:
THE HONOURABLE MR.JUSTICE B.PUGALENDHI
WP(MD)No.8630 of 2009
Agrini Enclave Houses and
Flats Owners' Association,
(Reg 33/2009),
ET3, Nirmal Sector,
Agrini Residential Enclave,
Analpuram, Madurai – 625 003.
Represented by its General Secretary
S.Palaniappan
... Petitioner
Vs
1.State of Tamil Nadu,
Represented by the Secretary,
Department of Town and Country Planning,
Secretariat,
Chennai – 600 009.
2.The Director of Town and Country Planning,
807, Annasalai,
Chennai – 600 002.
3.The Corporation Commissioner,
Madurai Corporation,
Madurai.
4.Sankara Seetharaman
Viswas Promotors Pvt Ltd,
Madurai.
5.V.R.Venkatachalam
6.R.K.Chandran ... Respondents
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https://www.mhc.tn.gov.in/judis
WP(MD)No.8630 of 2009
PRAYER: Writ Petition filed under Article 226 of the
Constitution of India for issuance of writ of mandamus,
directing the respondents 1 to 3 to remove the unauthorised
development made in the place earmarked for park, community
hall, primary school, car parking and open space as per the
approved lay out dated 31.07.2003 in Na.Ka.No.15914 of
2003.
For Petitioner : Mr.C.Muthusaravanan
For Respondent : Mr.D.Gandhiraj,
Nos.1 and 2 Special Government Pleader
For Respondent : Mr.R.Murali
No.3 Standing Counsel
For Respondent : Mr.S.Parthasarathy
Nos.4 to 6
ORDER
The petitioner is an Association registered under the Tamil Nadu Societies Regsitration Act, bearing registration No.33 of 2009 has filed this writ petition for a mandamus directing the respondents 1 to 3 to remove the unauthorised developments made in the plan earmarked for park, community hall, primary school, car parking and open space as per the original approved layout dated 31.07.2003.
2.An area to an extent of 15.71 acres in RS.No.17B, 20B/8, 10, 11, 12, 13,21, 22/1, 2A, 23B/1A1, 2A and 4A in 2/37 https://www.mhc.tn.gov.in/judis WP(MD)No.8630 of 2009 Madakulam Village, C-ward 41, Madurai was developed and promoted by 4th respondent as housing plots and the same was approved by 2nd respondent vide proceedings in Na.Ka.No. 15914/2003 dated 31.07.2003. The 4th respondent with the help of some of the officers of the 3rd respondent corporation has revised and modified the original approved plan dated 31.07.2003, wherein the places, which were earmarked for park, primary school and car parking of the approved layout dated 31.07.2003 have been obliterated without the knowledge of the residents of the association. Aggrieved over the same, the petitioner association has filed this writ petition. The petitioner association has also lodged a criminal complaint as against the 4th respondent and the Assistant Executive Engineer, South Zone, Madurai Corporation before the C2 Subraminapuram Police Station and a case in Crime No. 368 of 2013 was registered, the same has been chargesheeted and pending in CC No.1 of 2015 before the learned Judicial Magistrate No.I, Madurai.
3.The learned Counsel for the petitioner submits that as per the layout an area to an extent of 6414.75 Sq.m was 3/37 https://www.mhc.tn.gov.in/judis WP(MD)No.8630 of 2009 left out for park and recreation purpose and the same would consist of an extent of 2418.75 Sq.M in Sector -I, an extent of 3339.5 Sq.M behind Sector- III B and an extent of 656.5 Sq.M in front of Sector-V in the approved layout. But the 5th respondent has fenced the area to an extent of 2418.75 Sq.M in Sector-I and kept under his custody for his personal use without any access to the other residents. The area earmarked for primary school is an extent of 2823.42 Sq.M in Sector-I, where an old building is existing. As per the lay out condition imposed by 2nd respondent, the said old building had to be demolished and a primary school had to be built. Instead 4th respondent sold the particular area along with the old building to 5th respondent, who inturn is using the same for his personal use as against the approved layout plan.
4.The learned Counsel further submits that the western and northern side of Sector-III was earmarked for car parking. The old buildings in the said areas ought to have been demolished as per the lay out conditions imposed by 2nd respondent. But till date the old buildings are utilised by 4th respondent promoter for his personal use. The vacant 4/37 https://www.mhc.tn.gov.in/judis WP(MD)No.8630 of 2009 place in the northern side of Sector-III is also used by him by storing wooden logs, thus the ares surrounding Sector-V has been encroached by 4th respondent by putting temporary sheds and letting out for commercial purpose.
5.The learned Counsel further submits that the main road inside the enclave has to be with an extent of 7.2m width from the main entrance gate to northern compound wall, but the road from the main entrance to Sector-I is very narrow, much lesser to 7.2m causing traffic congestion and inconvenience to the 2500 residents more than 680 families.
6.The learned Counsel by referring Section 56 of the Tamil Nadu Town and Country Planning Act submits that the above provision enables removal of unauthorised developments in the approved layout and therefore, the respondents are duty bound to remove the unauthorised developments.
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7.He further submits that there is no provision available under the Town and Country Planning Act for modification / revision of the original approved layout. The modification in this case is a total deviation from the approved original layout and also affects the interest of the residents of the association. As per the original layout approval the park situated opposite to the bungalow has to be maintained by the promoter. However, the 4th respondent sold the place earmarked for park. Similarly the place, which was allotted for primary school, was also sold to the 5th respondent. All these transactions are made as against the original approved plan dated 31.07.2003 and nowhere there is reference about these transactions in the so-called modified plans.
8.The learned Counsel has also relied on the orders of this Court in Crl.OP(MD)Nos.8796 and 21125 of 2015 dated 21.01.2020 in the quash applications filed by the accused in Crime No.368 of 2013, wherein this Court by relying on the statement of the officials of the Town and Country Planning Department has held that there is no provision available for the 2nd respondent to modify the 6/37 https://www.mhc.tn.gov.in/judis WP(MD)No.8630 of 2009 approved layout and the above modifications were made without authority and it is illegal. The accused No.2, who is an Assistant Executive Engineer (South Zone), Madurai Corporation, Madurai has issued proceedings on behalf of the Commissioner, Madurai Corporation and he is not a competent authority to sign and issue such an order. These modified plans are without authority and therefore, necessary orders shall be passed by this Court, to remove the unauthorised developments, made in the places earmarked for common use as per the original plan.
9.The learned Special Government Pleader appearing for the official respondents by referring the counter affidavit of the 2nd respondent submits that the layout was approved by the 2nd respondent / the Director of Town and Country Planning by order dated 31.07.2003 and the subsequent three modifications were permitted by 2nd respondent. The original layout dated 31.07.2003 is not a layout and it was created for construction of the housing project. The final approval was given by the 2nd respondent on 27.03.2006 and as per the final approval plan, a total area of 6,441.90 Sq.M is earmarked for park and recreational purpose, each park is 7/37 https://www.mhc.tn.gov.in/judis WP(MD)No.8630 of 2009 having an extent of 2418.75 in Sector-I, has been fenced and maintained as park and other areas are kept for public utility without fencing. The counter further reads that 10% common utility space is provided within the campus and internal roads are formed as in approval. All conditions imposed by the 2nd respondent have been complied with and the allegations made in the writ petitions are false.
10.The learned Special Government Pleader further submits that 7.2m vide internal roads from main entrance gate to northern compound wall are maintained as in approval. The place earmarked for car parking is kept vacant, sufficient space is available for parking in the enclave and the residents are parking their vehicles without any difficulties. Further the constructions referred to are temporary sheds put up with tin sheets and it can easily be removed.
11.The learned Special Government Pleader further submits that a total area of the enclave of 63823.95Sq.M out of which only 19555.65 Sq.M is occupied by buildings. The plot coverage is only 30.64% which is much below the 8/37 https://www.mhc.tn.gov.in/judis WP(MD)No.8630 of 2009 permissible plot coverage of 50%. The F.S.I achieved on completion of construction is only 1.11% as against the permissible FSI 1.50%. Hence the petitioner's contention and allegation that they are living amidst the congested surroundings and concrete buildings and without any fresh air for breathing is baseless.
12.The learned Standing Counsel appearing for the 3rd respondent Corporation submits that 4th respondent has constructed the building in accordance with the plan approval and there is no violation as alleged by the petitioner in the writ petition. There is no unauthorised development made in the place earmarked for park and other open spaces. All open spaces meant for the public utility are intact without any encroachment. It is pertinent to state that after the original proposal and approval by the Corporation, the 4th respondent with the prior approval of the 2nd respondent revised the same and the present constructions are well within the norms and conditions of revised approval. That apart, the proceedings dated 31.07.2003 of the 2nd respondent is not a layout approval but an approval accorded for a construction of housing 9/37 https://www.mhc.tn.gov.in/judis WP(MD)No.8630 of 2009 project. It is always open for the promoter to apply for revision of plan and further the revisions are made considering the benefits to the residents.
13.The learned Standing Counsel further submits that there is open space to an extent of 6801.40 Sq.Mr, which is 10.68% of the total extent of the enclave and therefore, the percentage of the land reserved for public usage is more than the required level of 10%. The original proposal to convert the old bungalow in an extent of 2823.42Sq.m, in Sector-I, as a primary school is modified by a separate proposal of the 4th respondent and the same is also approved by the 2nd respondent by proceedings dated 22.10.2003. Following the said revised approval the Corporation is also accorded its approval for the same by proceedings dated 01.12.2003 in terms of the 2nd respondent proceedings. Since the 4th respondent has obtained necessary sanction and approval for keeping the old bungalow for residential use, the subsequent purchase is also entitle for such benefits.
14.The learned Standing Counsel appearing also submits that the 4th respondent by way of a revised plan, proposed 10/37 https://www.mhc.tn.gov.in/judis WP(MD)No.8630 of 2009 to construct four independent houses by demolishing the old houses with some alternative arrangements and the same was permitted by the 2nd respondent in current file No.5216/2006 on 27.03.2006. The final approval was accorded by the 3rd respondent in current file No.SZ.Eng.1/5779/2003 dated 24.11.2006 following the 2nd respondent's proceedings. Hence the conversion of the community hall space as space for the construction of four residential units, was sanctioned as early as 24.11.2006. Construction of house by 5th respondent is a sanctioned one, it is not an unauthorised.
15.According to the learned Standing Counsel the 4th respondent has submitted a revised proposal to convert the entrance lobby into two residential flats and the same has been sanctioned by this respondent on 12.01.2009. The 4th respondent is an absolute owner of the area and he is paying necessary taxes to the Corporation. The 4th respondent though obtained approval for the construction of 5 row houses, he had constructed only 4 row houses. Hence the houses constructed in Sector-I are nothing but authorised construction and there is no question of encroachment in the open area.
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16.The learned Counsel for respondents 4 to 6 submits that what was permitted on 31.07.2003 has been subsequently revised by the authorities themselves for the benefit of flat owners and residents of Agrini Enclave. When the writ petitioner had full knowledge of the existence of the revised proceedings, he has projected as if the proceedings dated 31.07.2003 alone is on record. Copies of all the revised proceedings were already handed over in person to the residential association on 03.12.2008 in a function conducted for the purpose.
17.The learned Counsel further submits that the 5th respondent has purchased the bungalow with garden from the 4th respondent and is maintaining the open space as a garden in front of the bungalow. It is his personal area where others have no right or access over the same. There was a proposal to convert the old bungalow measuring an extent of 2823.24 Sq.Mr, in Sector-I as a primary school. But as already stated the reservation for primary school comes under commercial reservation. Therefore the promoter submitted a revised proposal to retain the old bungalow as a residential unit making alternative arrangements in areas 12/37 https://www.mhc.tn.gov.in/judis WP(MD)No.8630 of 2009 for commercial use and the same has been consented by the Director of Town and Country Planning in file No.24746/2003 dated 22.10.2003. The reservation suggests that community hall, primary school and car parking for the residents are salable categories and it is not for the residents at free of cost. These open spaces were allotted for the purpose of selling to the persons, those who come forward to construct and run a community hall and primary school. Further for car parking, there is sufficient space available in the Agrini Enclave. Depending upon the need, they have approached the authorities and submitted certain revisions for approval and all the developments in the enclave have taken place in terms of the revised approval by the competent authority. The open space / reserved space available for the use of residents in common as per revised approval is 6414.75 Sq.Mr, ie., 10.68% of the total extent of the enclave and therefore, there is more land for public use than the required 10% for common use. The 4th respondent herein though obtained approval for the construction of 5 row houses, has constructed only 4 row houses. Hence no act of unauthorised construction and encroachment in the open area as levelled by the petitioner arises here. 13/37 https://www.mhc.tn.gov.in/judis WP(MD)No.8630 of 2009
18.This Court considered the rival submissions and perused the materials placed on record.
19.The petitioner is the Agrinai Enclave House and Flat Owners’s Association. The 4th respondent has developed a land to an extent of 15.71 Acres in RS No.17B, 20B etc.,. in Madakulam Village, within Madurai corporation in the year 2003. The layout forwarded by the Local Planning Authority was also approved by the Director of Town and Country Planning by his order dated 31.07.2003. As per this layout an area to an extent of 6414.75 Sq Meters was earmarked for park and other recreational purpose into 3 sectors as
(a) Sector 1 - 2418.75 Sq.m
(b) Sector IIIB - 3339.5 Sq.m and
(c) Sector 5 - 656.5 Sq.m.
The space to an extent 2823.42 Sq.m in Sector 1 has been earmarked for primary school and another place to an extent of 1681.04.Sq.m in Sector II has been earmarked for community hall, these spaces earmarked for park and community hall and for other common purposes have been utlised for other purposes without the consent of the 14/37 https://www.mhc.tn.gov.in/judis WP(MD)No.8630 of 2009 residents / the beneficiaries of the layout and therefore the residents association has approached this court to remove the unauthorized developments made in the place earmarked for park, community hall, primary school etc., as approved in the original layout dated 31.07.2003.
20.The 4th respondednt / promoter of the layout claims that this original approval order dated 31.07.2003 has been subsequently revised on 19.09.2003, 22.10.2003,27.03.2006 and 30.11.2007 and as per the final approval plan 10.68% [Open Space Reservation] O.S.R is available for the exclusive use of residents / owners in the agrini enclave and as per the modified plans the lands have been interchanged and therefore there is no violation and the existing open space reservation is more than the required 10% of the land to be reserved for any public usage.
21.In fact there is an old bunglow in sector I and as per the original proposal the old bunglow was intented to be converted into a primary school. By the revised proposals the old bunglow has been retained by the promotor and further was sold to the 5th respondent with attached 15/37 https://www.mhc.tn.gov.in/judis WP(MD)No.8630 of 2009 garden and some other area has been allotted for the primary school. The old building is a heritage building and in order to preserve the same they have allotted some other place for the establishment of the primary school and the land sold to the 5th respondent, is being preserved in tact. This revised plan has been approved by the Director of Town and Country Planning in file number 24746/2023 dated 22.10.2003.
22.In an earlier occasion, during the course of arguments, based on the request of the parties, this Court appointed Advocate Commissioners to inspect the place and to file a report. Accordingly the Advocate Commissioners filed their report dated 18.10.2012 by noting the following deviations.
“1. Park: A park is located on the south of existing bungalow, which is said to be belonging to the 5th respondent with a total extent of 2677.56 Sq.M.The Park has no access to the residents of the enclave. The park could be accessed only from the bungalow on the north of the park.
2.The There is no open space to the north Sector-III A with an extent of 831.50Sq.Mr in a triangular shape. Though it is referred to as a space allotted for park by both the parties. It is not maintained as a park, 16/37 https://www.mhc.tn.gov.in/judis WP(MD)No.8630 of 2009 but a car parking area. We found vehicles parked there.
Community Hall: The space between Sector-I and Sector-II in the middle of the enclave was referred to as a space allotted for community hall by the Counsel for the petitioner. However, we found that four independent houses have been constructed in the said area. There is no community hall in the entire enclave.
Primary School: In Sector I land and building situated north of the park referred to in para 1-C is maintained as bungalow. This space is referred to as a place meant for construction of primary school by the petitioner's counsel. However, petitioner said that the said bungalow is owned by 5th respondent as a private property.
Car parking : East of Sector -V, along the eastern compound wall an open car park is available with an area of 1236.24Sq.M. However, the said area Bharat Gas Agency Hydro Pneumatic Room, grocery shop, electrical transformer generator room and another gas agency hydro pneumatic room are located. This area could accommodate around 40 cars approximately.
H.On the west of the existing building in Sector III B a car park is provided which could not accommodate around 5 cars. However, the Counsel for the petitioner requested us to note that the area was sold to third parties along with the existing building on the west. However, during our inspection, we found that cars were parked in that area.
On the westernmost portion of the enclave on the side of the compound we found a row of existing buildings. The Counsel for the petitioner requested us to note that this are was earmarked for car park in 2003 plan, but sold out to third parties.
17/37 https://www.mhc.tn.gov.in/judis WP(MD)No.8630 of 2009 The road running between part referred to in para 1 C and Sector 1 is having a width ranging from 5 metres to 8.2 metres at different places.”
23.Admittedly the original layout approval by the competent authority / the 2nd respondent has been revised for 4 times and as such the residence of that layout are not having proper space for parks, primary school, car parking etc... The revisions were made without the consent of the plot owners as against the orignal layout approval dated 31.07.2003.
24.The points for consideration in this writ petition are
(i) Whether places earmarked for parks, school, community hall, etc., can be altered?
(ii) Whether the authorities are having powers to revise the approved layout?
(iii) Whether it can be revised without the knowledge of the residents of the layout?
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25.The Town and Country Planning Authorities are constituted as per Section 11 of the Town and Country Planning Act, 1971 and the functions and powers for the authorities are given under Section 12 of the Act. The Local Planning Authority in order to prepare a development plan has to publish the resolution for the development plan in the District gazette under Section 19
(ii) of the Town and Country Planning Act. After such notification by the concerned authority, he has to apply before the appropriate planning authority for permission to carry out the development plan under Section 41(1) of the Act and the appropriate planning authority will decide the application submitted under Section 49(2) of the Act.
26.The guidelines for making such applications are given in Rule 9 of the Development Control Regulations for Erode/ Vellore / Tiruvellore/ Coimbator / Madurai / Gummudipoondi/ Kancheepuram/ Salem/ Chengalpattu/ Tiruppur/ Tiruchirapplli /Mamallapuram / Tirunelveli/ Thoothukudi/ Local Planning Area. As per Rule 9 of the regulations the minimum raod width has to be 9 metres and 10% of the area has to be reserved for communal and reacreational purpose 19/37 https://www.mhc.tn.gov.in/judis WP(MD)No.8630 of 2009 such as parks, playgrounds, community spaces, etc., and this 10% should be handed over to the local body and the relevant provisions are extracted hereunder:
“ 9(2)(c).Lay out and sub divisions :
... ... ...
(vii) the procedure for approval of layouts will be as per the G.O.Ms.No.134, Municipal Administration and Water Supply Department dated 20.09.2002 and G.O.Ms.No.71, Rural Development (C2) Department dated 16.06.2003.
(viii) the condition annexed to the order while according technical approval of the layout shall be binding on the developer / Local Body / Planning Authority as the case may be.
(ix) Any development of layouts without obtaining specific approval under these regulations will be construed unauthorised development. In such unauthorised development, appropriate authorities may initiate necessary action as per Sections 56 and 57 of the Act. .. ...
9(3)(ii). The space said apart for roads and the area reserved for community and recreational purposes as 20/37 https://www.mhc.tn.gov.in/judis WP(MD)No.8630 of 2009 mentioned above shall be registered and transferred to the authority or agency or the local body designated by the authority through a registered sale deed before the approval of the layout. The exact mode of conveyance should be consistent with the relevant enactments and regulations. Any exemptions or waiver on this space could be decided by the government only.
9(3)(iii)The building and the use of land shall conform to the conditions that may be imposed while sanctioning the lay out.
9(3)(v) The 10% shall not be put into any other use or considered for de-reservation.
Schedule -I (2) The site so reserved shall be exclusive of the back spaces and spacing between blocks and shall be free from any constructions structure.
27.The procedure for approval of layout were laid in G.O.Ms.No.134 Municipal Administration and Water Supply Department dated 20.09.2002 and the same is recorded as under:
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https://www.mhc.tn.gov.in/judis WP(MD)No.8630 of 2009 “V.On receipt of the proposals approved by the Member Secretary, Composite Local Planning Authority/Regional Deputy Director of Town Panchayat Country Planning, the Executive Authority of the Local Body shall direct the applicant to hand over the openspaces and roads after fuly forming them and also to provide all the infrastructural facilities like roads, water supply, drainage and street lights and hand them over to the concerned local bodies after executing necessary gift deed. In case the applicant desires that the work be executed by the local body he shall remit 100% of the cost as per the estimates in advance.
VII.After the above process is completed and the gift deed is submitted, a subject will be placed before the Council of the concerned local body for granting approval of the layout along with the planning permission wherever necessary, the layout will be considered to have been approved only after it is finally approved by the Council of the Local Body. Final approval for layouts should be accorded only after the applicant provides all the infrastructural facilities like roads, water supply, drainages and street lights and hands them over to the concerned local bodies.
XI. In respect of Ut.Bs namely Corporations, Municipalities and Town Panchayats powers are delegated for the approval of layouts by the concerned Regional Deputy Director/ Member Secretary, Composite Local Planning Authority to an extant of 5 acres. For layouts above 5 acres, the paper shall be routed through Member Secretary / Local Planning Authority or Regional Deputy Director as the case may 22/37 https://www.mhc.tn.gov.in/judis WP(MD)No.8630 of 2009 be, who will submit the papers of Director of Town and Country Planning along with his sitinspection notes. All layout in Hill areas, layouts of a major nature including organizations like the Tamil Nadu Housing Board, Tamil Nadu Slum Clearance Board, SIPCOT etc.. should be referred to the Director of Town and Country Planning irrespective of the extent. All the revised layouts also should be referred to the Director of Town and Country Planning.”
28.Even before issuance of this Government Order, considering the variations in the existing open space reservations in some layouts and most of the vested sites have not been maintained and utilised by developers or by the concerned local bodies for the purpose for which they are earmarked in the approved layout the government has issued GO.Ms.No.222 Municipal Administration and Water Supply Department dated 28.08.1992 and the relevant regulations are extracted hereunder:
“3.Public purpose reservations have to be made in every layout for providing good and healthy environment to the people who live there and hence are very essential in every layout. With a view to enable the local bodies take over the street and public purpose reservations in approved layouts as insisted by the Department of Town and Country Planning to maintain the same properly. The commissioner of Municipal Administration has suggested that before the Director of Town and 23/37 https://www.mhc.tn.gov.in/judis WP(MD)No.8630 of 2009 Country Planning gives the number and approves the layout and send it to the local body they may approve the road pattern and earmark the reserved sites in the plan and send it to the local body, which will ask the developer to handover the reserved sites and roads after duly forming that. If the Director of Town and Country Planning gives the final approval number after this is done then it will be very difficult for the developer to sell the plots before duly getting the approval from the local body.
4. The government have examined the matter and direct that the following procedure followed- viz., before the Director of Town and Country Planning given the number and approves the layouts and sends it to the local body, he may approve the road pattern and earmark the reserved sites in the plan and send it to local body which will ask the developer to handover the reserved sites and roads after duly forming then. The Director of Town and Country Planning should not give the approval before the roads (duly formed) and reserved sites are handed over to the Municipality by the applicants.”
29.The government order in GO.Ms.No.134 dated 20.09.2002 was in existence in the year 2003, when the propsal for layout in this case has been accepted by the local authorities for the Aagrini enclave. As per this Government Order the place earmarked for parks, schools, play ground etc.., cannot be converted with any other place 24/37 https://www.mhc.tn.gov.in/judis WP(MD)No.8630 of 2009 or utilised for anyother purposes. This view has been taken by the Hon'ble Apex Court as well this Court time and again and the same are extracted as under:
30.In Chet Ram Vashist Vs Municipal Corporation of Delhi Reported in (1995) 1 SCC 47, the Hon'ble Supreme Cour 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 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.”
31.In Bangalore Medical Trust Vs B.S.Muddappa and others, reported in 1991 SCR (3) 102, the Hon'ble Supreme Court has held as follows:
“Protection of the environment, open spaces for recreation and fresh air, play grounds for children, promenade for the residents, and other conveniences or amenities are matters of great public concern and of vital interest to be taken care of in a development scheme. Public park as a place reserved for beauty and recreation is associated with growth 25/37 https://www.mhc.tn.gov.in/judis WP(MD)No.8630 of 2009 of the concept of equality and recognition of importance of common man. Earlier 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.”
32.A Division Bench of this Court in SIDCO Nagar Welfare Association vs. Chennai Metropolitan Development Authority and Ors, reported in 2018(5) CTC 857 has held as follows:
“35.In the light of the above settled position of law, wherein, the Hon'ble Supreme Court and this Court had held that the land which is reserved for public purpose, particularly, under Rule 19(a)(iii) for communal and recreational purposes cannot be converted even by the Government, as neither the Government nor the owner, have any title over the same and it actually vests in the purchasers of the residential plot in the locality. Therefore, the second question is answered to the effect that the land which is reserved for communal or recreational purposes in a lay-out under Rule 19(a)(iii) actually belongs to the purchasers of the plots in the residential lay-out as an amenity defined under Section 2(2) of the Act.
36. Once it is held that the land which is reserved for a communal and recreational purposes in a lay-out, does not vest in the Government or in the owner or developer and the ownership actually vests with the 26/37 https://www.mhc.tn.gov.in/judis WP(MD)No.8630 of 2009 purchasers of the plots as an amenity under Section 2(2) of the Tamil Nadu Town and Country Planning Act, 1971, the Government is denuded of the powers to reclassify the same. Probably, the 2nd respondent Chennai Metropolitan Development Authority as well as the 4th respondent Tamil Nadu Housing Board, were aware of the legal position, but however, they chose to project a false picture before the Government, as if the land was reserved for store-cum-site office in the original plan and thereby, persuaded the Government to approve the re-classification.
This conclusion of ours emanates from the reading of the impugned G.O. dated 24.08.2004, wherein, the Government specifically adverts to the claim of the residents' association, the appellant herein and holds that the appellant's claim cannot be accepted, because the land in question was not classified as play ground or park, but as store-cum-site office.
37. We are therefore of the considered opinion that the Government has no power to re-classify a land which was reserved for communal and recreational purposes (park-cum-play ground) under Rule 19(a)(iii) of the Development Control Rules. Once we conclude that the Government has no power, the impugned G.O., namely G.O.3D. No. 8 dated 24.08.2004, issued by the Government would be invalid and per se illegal and hence liable to be quashed. As pointed out by the Hon'ble Supreme Court in the Bangalore Medical Trust's case, cited supra, the action of the State Government suffers from absence of jurisdiction.
38. In view of the foregoing reasons, we are of the considered view that the action of the Government in converting the land that was reserved for park-cum-play field into a mixed residential zone has to be 27/37 https://www.mhc.tn.gov.in/judis WP(MD)No.8630 of 2009 set aside and both the Writ Appeals will stand allowed and the Writ Petitions in WP Nos. 8867 of 2007 and 32896 of 2007 will stand allowed.
39. The 2nd respondent, namely the Corporation of Chennai is directed to take possession of the entire vacant land available and develop it as a park within a period of 6 months from the date of receipt of a copy of this judgment. The Commissioner, Chennai Corporation is also directed to file a compliance report along with proper documentary proof for having complied with the above directions into the Registry without fail within a month thereafter.”
33.Following the above decision of the Division Bench, this Court in Sabha Srinivaasan @ S.Kanaga Sabapathy Vs Director of Town and Country Planning, reported in 2021 (4) CTC 830 has held as follows:
“11.The learned counsel for the third respondent further submitted that, as per the requirement, the layout reservation of roads, Children Play Space and park sites were gifted to the Municipality by way of gift deed in document No. 1093/83 and the site for school reservation was not handed over to local body. It is the specific contention that the school space should be used only for running school that can be sold only for the said purpose, but the lands earmarked as playground and park, by the Sanctioned authority in the lay out, cannot be reclassified as residential plots. Further, it is contended by him that that the plots "reserved for salable purpose" are Kalyanamandabam, 28/37 https://www.mhc.tn.gov.in/judis WP(MD)No.8630 of 2009 school and shops, but in so far as the lands "reserved for park and playground" are concerned, the same cannot be sold as the public also utilised the said lands without any restrictions.
12. In the light of the decision of the Division Bench of this court in SIDCO Nagar Welfare Association, rep. by its Secretary Vs. Chennai Metropolitan Development Authority, rep. by its Member Secretary and others reported in 2018 (5) CTC 857, the land reserved for park-cum-
play ground cannot be reclassified or converted even by the Government, as neither the Government nor the owner have any title over the same and it handed over to the local body authority by way of gift deed for the public purpose at the time of approval of the layout and the actual right vests in the residents of the locality. Therefore, the relief sought for by the petitioner for conversion of plots earmarked as children play school and park into residential plots cannot be granted as it has no merits. Therefore, there is no need to interfere with the impugned order passed by the first respondent and the writ petition is liable to be dismissed.”
34.In Alamunagar Residents Welfare Association, Coimbatore Vs State of Tamil Nadu and Ors, reported in 2010 (4) L.W.76, this Court held that the Corporation is having the duty to protect the interest of the public to enjoy the common area fully and the relevant paragraphs are extracted as under:
29/37
https://www.mhc.tn.gov.in/judis WP(MD)No.8630 of 2009 “60.The reservation under the sanctioned layout creates an obligation on the owner of the land and the Corporation in the nature of trustee to protect the interest of the public. So too, the purchasers of the plots in the sanctioned layout have the vested right for enjoying the common area fully. The Corporation and the owner have the legal necessity of respecting the expectation of the purchasers of the layout sanctioned plots that the earmarked portion continue to be available for public purpose; that neither the passage of time nor the whims and desires of the land owners affect the reservation of the land for public purpose.”
35.The above order has been challenged before a Division Bench of this Court and the Division Bench has upheld the above order in K.Rajamani and Ors. vs. Alamunagar Residents Welfare Association and Ors, reported in MANU/TN/3206/2010, by observing as follows:
“In that view of the matter, we hold that once such permission is accorded and in that permission if a specified area is earmarked for public purpose, even the planning authority shall not have power to exempt that land for being put to use for any other purpose. In that context, the State Government also cannot have any jurisdiction to alter the conditions imposed in the layout, whereby certain lands are earmarked as open space to be used for public purposes.” 30/37 https://www.mhc.tn.gov.in/judis WP(MD)No.8630 of 2009
36.The petitioner associaion is the members of the residents of agrini enclave apartment. They have purchased the property based on the original layout approval dated 31.07.2003 issued by the 2nd respondent, wherein certain separte place for park, school, recreational purposes, community hall have been earmarked in Sector I, Sector IIIB and Sector V. Admittedly without the knowledge of the owners, the original approved layout has been modified / revised by the 4th respondent promotor with the help of the 2nd respondent and because of the same, the petitioners were facing various issues such as lack of space for car parking, park, community hall, primary school, etc.,
37.The Advocate Commissioners report also reveals that in the place allotted for primary school, there is a building in existence along with the separate park that has only acces from the building itself and the residents were not allowed to use the park. There is no primary school is in existence in the entire enclave as per the Advocate Commissioners' report. The report also reveals that the place earmarked for community hall has been utilised by the 4th respondent by building independent houses. Further some 31/37 https://www.mhc.tn.gov.in/judis WP(MD)No.8630 of 2009 buildings are in existence in the area earmarked for cark park in the western most post portion of the enclave and there is an variations in the width of the road ranging from 5 meters to 08.02.Meters.
38.The original lay out plan was approved on 31.07.2003.As per rule 9(2)(c)(vii) of the regulation the approval of layout has to be done as per G.O.Ms.No.134, Municipal Administration and Water Supply Department dated 20.09.2002 and G.O.Ms.No.71 Rural Development Department dated 16.06.2003. These Government Orders were in force even before the approval of layout by the 2nd respondent for the enclave on 31.07.2003. As per G.O.Ms.No.134, the Local Body should direct the applicant to handover the open spaces and roads after duly forming them by executing a necessary gift deed to the local authority. The process of lay out should be commenced only after the gift deed submitted by the applicant to the local bodies and as per G.O.Ms.No.222 Municipal Administration and Water Supply Department dated 28.08.1992, the Director of Town and Country Planning should not give approval before the roads and reserved sites are handed over to the municipality by 32/37 https://www.mhc.tn.gov.in/judis WP(MD)No.8630 of 2009 the applicant. As per Section 9(2)(c) of the Regulations, these conditions stipulated in the above government orders are binding on the developer/ local body / planning authority.
39.Admittedly in this case there is no such gift deed executed by the developer in favour of the local body and the 2nd respondent has approved the layout without ascertaining whether such gift deed has been executed or not, that itself is in violation of the government orders and the regulations which was in existence.
40. The place earmarked for school, parks, etc., cannot be altered or utilised for any other purposes. In order to ensure the same and to avoid exploitation by the promotors / local authorities, the government has made it mandatory that before approval of any layout a gift deed should be executed by the applicant to the local body. Therefore, the subsequent modifications of layout approvals for four times by the respondents without the consent of the residents is violative of the Regulations and government orders and hence the same are legally not valid. 33/37 https://www.mhc.tn.gov.in/judis WP(MD)No.8630 of 2009
41.From the judgments referred to above, it is clear that the spaces reserved for schools, community halls, parks etc., have to be used only for the particular purposes for which they were earmarked. Once the permission for layout is accorded and in that permission if a specific area is earmarked for the public purposes, even the planning authority does not have any power to grant permission to use the land for any other purposes. The effect of reservation is that the owner / promotor ceases to be a legal owner and he holds the lands for the benefit of the society or the public in general. However, in this case, the specific area allotted for primary school, community hall, park, play ground, etc., allotted in the original lay out have been utilised by the promotor for his own monetary benefits.
42.As per Rule 9(2)(c) of the Regulations any development of layouts without obtaining specific approval under these regulations will be construed as an unauthorised development and in such unauthorised development appropriate authority may initiate necessary action as per Sections 56 and 57 of the Townn and Country 34/37 https://www.mhc.tn.gov.in/judis WP(MD)No.8630 of 2009 Planning Act. Admittedly in this case, the places earmarked for school, community hall, parks, etc., have not been gifted by the 4th respondent to the local body which is in violation of the mandated regulations and the government orders.
43.Accordingly this writ petition is allowed and the developments if any in the places earmarked for the primary school, park, community hall and open space as per the original approved layout dated 31.07.2003 in Na.Ka.No.15914 of 2003 have to be treated as unauthorised and are liable to be removed. No costs.
20.10.2023
Internet : Yes / No
Index : Yes / No
NCC : Yes / No
dsk
35/37
https://www.mhc.tn.gov.in/judis
WP(MD)No.8630 of 2009
To
1.The Secretary,
Department of Town and Country Planning,
Secretariat, Chennai – 600 009.
2.The Director of Town and Country Planning, 807, Annasalai, Chennai – 600 002.
3.The Corporation Commissioner, Madurai Corporation, Madurai.
36/37 https://www.mhc.tn.gov.in/judis WP(MD)No.8630 of 2009 B.PUGALENDHI, J.
dsk WP(MD)No.8630 of 2009 20.10.2023 37/37 https://www.mhc.tn.gov.in/judis