Madras High Court
K. Kodeeswaran vs The District Collector on 7 December, 2022
Author: N. Sathish Kumar
Bench: N. Sathish Kumar
Writ Petition No.27814 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated: 7/12/2022
CORAM
THE HONOURABLE MR.JUSTICE N. SATHISH KUMAR
Writ Petition No.27814 of 2022
K. Kodeeswaran ... Petitioner
Vs
1. The District Collector
Salem District
Salem.
2. The Director of Town & Country Planning
807 Anna Salai
Chennai 600 002.
3. The Assistant Director of Town &
Country Planning
Salem District 636 007.
4. The Block Development Officer
(Village Panchayats)
Valapady Panchayat Union
Valapady Post
Salem District.
5. The President
Kattuveppilaipatty Panchayat
Seshanvadi Post, Vazhapadi Taluk
Salem District. ... Respondents
https://www.mhc.tn.gov.in/judis
Page No:1/10
Writ Petition No.27814 of 2022
PRAYER : Petition filed under Article 226 of the Constitution of India
praying for the issuance of a writ of mandamus to forbear the respondents
from proceeding further in the construction of Angawadi centre or any other
purpose, in the place earmarked as Park area in the reguarised layout
Approval No.815/2018, bearing Plot Nos.27, 28 & 29 Sri Krishna Garden,
comprised in S.No.6/2 Part, situate at Kattu veppilaipatty Village, within
Vazhapadi Panchayat Union, Vazhapadi Taluk, Salem District.
For Petitioners ... Mr.K.Premkumar
For respondents ... Mr.V. Nanmaran
Additional Government Pleader
for R.R.1 to 3
Mr.M.Murali
Government Advocate
for R.4.
Mr.A.Anandan
Government Advocate
for R.5.
-----
ORDER
This writ petition has been filed to direct the respondents from proceeding further in the construction of Angawadi centre or any other purpose, in the place earmarked as Park area in the reguarised layout Approval No.815/2018, bearing Plot Nos.27, 28 & 29 Sri Krishna Garden, comprised in S.No.6/2 Part, situate at Kattu veppilaipatty Village, within Vazhapadi Panchayat Union, Vazhapadi Taluk, Salem District. https://www.mhc.tn.gov.in/judis Page No:2/10 Writ Petition No.27814 of 2022
2. The case of the petitioner in brief is as follows:-
The petitioner had purchased the vacant land comprised in S.No.5/3B (later sub-divided as S.No.5/3B1), measuring 0.47 cents, totalling to acres 2.38 cents, patta Nos.924 and 406, situate at Kattuveppilaipatty Village, Vazhapadi Taluk, Salem District by way of a sale deed, dated 3/3/2010 registered as Doc No.917/2010 at S.R.O.Vazhapadi, Salem District from one M.Kanagaraj. The petitioner had developed the said land into an unapproved house sites, numbering about 38 plots and sold three of such plots. Since this Hon'ble Court had banned the sale and registration of unapproved layouts, he could not sell the remaining plots.
3. With a view to regulate the sale of unapproved layouts, the Government of Tamil Nadu, through the Housing and Urban Development Department, issued G.O.(Ms) No.78, dated 4/5/2017 framed the Regulations for regularisation of unapproved plots on payment of necessary charges.
Hence, the petitioner had submitted an application to the third respondent, seeking regularisation of the unapproved layout developed by the petitioner. Third respondent, vide Proceedings in Na.Ka.No.4696/2018 Se.ma.3 dated 30/8/2018 has granted pre-approval of layout of house sites. https://www.mhc.tn.gov.in/judis Page No:3/10 Writ Petition No.27814 of 2022
4. Fourth respondent/BDO, vide, Proceedings, dated 20/11/2018 directed the petitioner to execute gift deed in respect of the Open Space Area (OSR Area) in favour of the concerned Panchayat Union. The petitioner had executed a Gift Deed, dated 26/11/2018, registered as Doc.No.373/2018 at S.R.O., Vazhapadi, thereby donating the OSR Area, consisting the Street area, measuring 17129.1/4 sq.ft and park area bearing Plot Nos.27, 28 and 29 measuring 8120.9 sq.ft in favour of Vazhapadi Panchayat Union.
5. When the matter stood thus, during the third week of September, 2022, respondents stacked the building materials in the park area and tried to put up construction to accommodate Anganwadi Centre. Hence the petitioner has come forward with the instant writ petition praying for the relief as stated therein.
6. In the counter filed by the Block Development Officer (V.P) Panchayat Union, Valapady, it is stated that Government of India launched the Integrated Child Development Service (ICDS) Scheme, on 2nd October, 1975. The Scheme provides for supplementary nutrition, immunization and pre-school education to the children which is one of the popular flagship https://www.mhc.tn.gov.in/judis Page No:4/10 Writ Petition No.27814 of 2022 programme of the Government. The said project is purely in the interest of the children of the local residents and mainly considering the safety of the children. Once the said Open Space Reservation area is gifted to the Government, it becomes a public place and can be used for the welfare of the people without obstructing the reserved purpose.
7. Heard Mr.K.Premkumar, learned counsel or the petitioner, Mr.V.Nanmaran, learned Additional Government Pleader for the respondents 1 to 3, Mr.A.Anandan, learned Government Advocate for the fourth respondent and Mr.M.Murali, Government Advocate for the fifth respondent.
8. Learned counsel appearing for the petitioner submitted that once the land has been handed over to the Corporation, the same has to be maintained as park and hence, the same cannot be utilised for any other purposes and there is no public interest involved.
9. Perused the materials available on record.
10. In the judment of the Apex Court in PT.Chetram Vashist [Dead] https://www.mhc.tn.gov.in/judis Page No:5/10 Writ Petition No.27814 of 2022 by Lrs. Vs. Municipal Corporation of Delhi reported in [1995]1 Supreme Court Cases 47, the Apex Court has held that Space reserved in the plan for public purpose for park school etc., 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.
11. In judgment of this Court in Sabha Srinivassan @ S.Kanaga Sabapathy Vs. Director of Town and Country Planning and others reported in 2021 [4] CTC 839, it has been held that land reserved for park cum playground cannot be reclassified or converted even by the Government, as neither the Government nor the owner have any title over the same and it is 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. 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 reported in 2018 [5] CTC 857, held that conversion of plots earmarked as children Play School and park into Residential Plots cannot be granted.
https://www.mhc.tn.gov.in/judis Page No:6/10 Writ Petition No.27814 of 2022
12. In the judgment of this Court in R.Chandran Vs. State of Tamilnadu rep. by its Secretary, Department of Municipal Administration and Water Supply reported in 2010 [4] CTC 737, this Court has held that as the land in question has been used as park and playground for the past 50 years, Corporation cannot be allowed to use the said playground for construction of underground parking and set aside the Order of the Corporation.
13. Though the said area has been earmarked for park, the same has not been utilized for the purpose for which it has been meant. Merely because a portion has been earmarked for park and the same has not been utilized for the said purpose, same cannot be a ground for the authorities to contend that they can convert the same for any other purpose in all cases.
14. Considering the public purposes, wherein this proposed site is required only for Anganwadi centre, such centre can be constructed anywhere not in the place ear marked for park. In such a view of the matter, considering the well settled position of law and considering the judgments, the respondent cannot convert the park area for different https://www.mhc.tn.gov.in/judis Page No:7/10 Writ Petition No.27814 of 2022 purposes and they are bound to maintain the park and greenery in the park area. Hence, in the larger interest of the public, the prayer in the Writ Petition is ordered.
15. Accordingly, this writ petition is allowed. No costs.
7/12/2022 Index : Yes / No Internet: Yes Speaking/non speaking order mvs.
To
1. The District Collector Salem District https://www.mhc.tn.gov.in/judis Page No:8/10 Writ Petition No.27814 of 2022 Salem.
2. The Director of Town & Country Planning 807 Anna Salai Chennai 600 002.
3. The Assistant Director of Town & Country Planning Salem District 636 007.
4. The Block Development Officer (Village Panchayats) Valapady Panchayat Union Valapady Post Salem District.
5. The President Kattuveppilaipatty Panchayat Seshanvadi Post, Vazhapadi Taluk Salem District.
N. SATHISH KUMAR, J mvs.
https://www.mhc.tn.gov.in/judis Page No:9/10 Writ Petition No.27814 of 2022 W.P.No.27814 of 2022 7/12/2022 https://www.mhc.tn.gov.in/judis Page No:10/10