Madras High Court
K. Durairaj vs The Secretary
Author: M.Dhandapani
Bench: M.Dhandapani
1
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on: 10.07.2019
Delivered on: 18.07.2019
Coram
The Honourable Mr. Justice M.DHANDAPANI
W.P.No.34395 of 2007
K. Durairaj ... Petitioner
vs.
1. The Secretary,
Tamil Nadu Town Administrative and
Water Supply Department,
Secretariat, Chennai – 9.
2. The Director,
Town and Countries Planning Authority,
No.807, Anna Salai,
Chennai – 600 002
3. The Commissioner,
Coimbatore City Municipal Corporation,
Town Hall, Coimbatore
4. Member-Secretary,
The Local Town Planning Authority,
Raj Naidu Street, Sivanantha Colony,
Coimbatore – 12.
http://www.judis.nic.in
2
5. The Secretary,
Peelamedu Industrial Worker's
Co-operative House Construction
Society Ltd.,
No.2, Ramasamy aidu Nagar,
V.K. Road, Coimbatore-35.
6. R. Sudha
7. K. Ramasamy
8. A. Vimala
9. A. Gopalan
10.N. Lakshmi Bai
11 R. Vimala
12.R. Gokilammal
(Respondents 6 to 12 were impleaded
as per Order dated 08.11..
in M.P.No.1 of 2008
13. S. Madhan
14. P.G. Alexander
15. R. Satheesh Kumar
16. J. Rajedran
17. R. Dharani Kumar
18. V. Rajamani
(Respondents 13 to 18 were impleaded
as per Order dated 03.12.2014 in MP
No.1 of 2014)
19. Ms.Krishnaveni
(19th respondent was impleaded as per
Order dated 10.07.2019 in WMP No.
34427 of 2018)
.... Respondents
http://www.judis.nic.in
3
Writ Petition filed under Article 226 of the Constitution of India,
praying for the issuance of a Writ of Certiorari to call for the records
from the first respondent pertaining to Government No.(P) 245 and to
quash the said order dated 21.06.2005.
For Petitioner : Mr.N.S. Nandakumar
For R.1, R.2 & R.4:Ms.K. Bhuvaneswari
AGP
For R.3 :Mr.R. Sivakumar
For R.5 :P. Vasudevan
For R.6 to R.12 : Mr.M.S. Krishnan
Senior Counsel for
Sarvabhauman Associates
For R.13 to R.19 : Mr.R. Singaravelan
Senior Counsel for
Mr.R. Jayaprakash
ORDER
The petitioner filed the present Writ Petition praying to quash the order passed by the first respondent in Government No.(P) 245 dated 21.06.2005.
http://www.judis.nic.in 4
2. The case of the petitioner is that since 1976, he is one of the members of the Peelamedu Industrial Worker's Co-operative House Construction Society Ltd, Fifth respondent herein. As a member of Society, he was allotted with Plot No.35 (Old No.34). The petitioner put up a house building in the said plot and is residing there from 1975 onwards.
3. The fifth respondent Society was formed during 1955 and the object of the Society was to acquire land at Sowripalayam Village in Survey Nos.275/1, 2 and 276/3, 4, obtain approval and thereafter allot the approved plots to its members, who were the workers of the Pioneer Mills and Radhakrishna Mills both situated at Peelamedu, Coimbatore, as provided under the bye-laws of the Society.
4. The said Society acquired the lands as stated above and obtained approval from the Singanallur Municipality vide D.Dis 84/61 dated 29.06.1968 under L.P.D.M/D.T.P No.35/68. The authority approved the lay out on the condition that the roads and other communal areas as provided in the approved plan are to be http://www.judis.nic.in 5 transferred to the municipal authorities. However, till 1999, the 5th respondent failed to transfer the lands purported to be for the common usage of the local residents. Subsequently, the bye-laws were amended to enable other persons also to become its members.
5. After the Municipal authorities insisted on transferring the land shown as road and communal areas, the fifth respondent had on 14.06.2000 gifted a total extent of 35,777 sq.ft of land which was to be used for the purpose of public utility. The said Gift Deed was registered as Doc.No.977/2000 on the file of Sub Registrar's Office, Peelamedu. Thereafter, the fifth respondent had on 09.08.2000 gifted a total extent of 76,628 sq.ft of land which was to be used for the purpose of road provided in the plan. The said gift deed was registered as Doc.No.1722/2000 on the file of Sub Registrar's Office, Peelamedu.
6. Immediately, after gifting of the lands, the fifth respondent requested modification of the lands shown for communal purposes under the earlier approval as plots and sought modified plan to that effect. The respondents No.3 and 4 declined the said request of the fifth respondent. However, the fifth respondent bye passed the third http://www.judis.nic.in 6 and fourth respondents and had applied to the second respondent for sanction of additional plots by converting the communal areas provided in the original plan.
7. The total extent of the land is 7.96 acres. As per the earlier gift deed, an extent of 35,777 sq.ft of land had been surrendered to the Municipal Council of Coimbatore. Thus, an extent of 10.33% has been treated as communal area. However, the Original Plan contained a larger extent of land abutting the 16 feet metalled road on Southern Side and 20 feet road on its northern side and also the 16 feet metal road with about 560 feet length which will all admeasure an extent of about 35 cents. The above 35 cents, which should have been gifted to the Municipal Council of Coimbatore by the fifth respondent, was not gifted till date despite several letters from the third respondent.
8. The second respondent without taking into consideration the above fact, without making any survey of the land and without giving proper details of location of land admeasuring 2.125 sq.ft to be transferred by the fifth respondent, had on 03.12.2003, recommended to the first respondent for approval of the amended plan as submitted http://www.judis.nic.in 7 by the fifth respondent. It is important to point out that the second respondent while making such recommendation to the first respondent had never even cared to take note of the letter dated 22.03.2002 by the third respondent stating that the gift deed by Doc.No.1722/2000 does not contain the proper extent of common usage land shown in the approved plan. He had further directed the fifth respondent to hand over the entire common usage lands to the third respondent.
9. The first respondent had on 23.12.2003 sought clarification to the second respondent as to whether the conversion of the communal areas will affect the interest of the local plot owners. The 2 nd respondent without making any enquiry with any of the interested persons, made a similar recommendation on 28.04.2005 as made on 03.12.2003 to the first respondent.
10. The first respondent without seeking proper clarification or without verifying the records, had hastily passed the Government Order (P) No.245 on 21.06.2005, approving the conversion of the communal area in excess of 10% to plots, with a condition that the amended plan should not alter the existing roads and the prohibited http://www.judis.nic.in 8 area for putting up construction as shown in the approved plan vide approval L.P.D.M / D.T.P No.35/68.
11. After the passing of the said Government Order, the fourth respondent had surveyed the lands and had by its letter dated 28.10.2005 stated to the second respondent that construction had already been completed in violation to the building Rules in the land shown as Plot Nos.116 and 117. Further it was reported that there was trespass in the shop area by four hut dwellers. However, the second respondent without considering the objections made by the fourth respondent, had directed the fourth respondent to approve the plan and forward the same to the third respondent. The fourth respondent, without any alternative, obeyed the order of the second respondent and forwarded the approved plan vide D.I.S/T.P.No.114/2005 to the third respondent. However, in the approval, the fourth respondent vide letter No.2546/2005 to the second respondent had expressed the infirmities which could not be cured. Thus, the statutory requirement for approval by the fourth respondent is not available in the revised plan.
http://www.judis.nic.in 9
12. The modified plan about 13 plots admeasuring an extent of 75 cents had been approved as new plots. The guideline value of one cent of land is at Rs.2,25,000/-, whereby, a sum of Rs.1,68,75,000/-
could have been generated by way of sale of the said lands. However, the petitioner was aware of the details of the Government Order No.(P) 245 and the approval of the amended plan only recently after corresponding with the third respondent vide his letter dated 27.02.2007 and from the reply of the second respondent to the petitioner on 25.07.2007. Challenging the said Government Order, the petitioner has filed the present writ petition.
13. The learned counsel for the petitioner submitted that the impugned order is a clear deviation to the Government Order No.245, which clearly directs that the existing road as approved in the original approved plan should be used only as roads and should not be converted into plots. The southernmost 10 feet road which had been shown as Item Nos.9 and 10 in the gift deed and transferred to the Municipal Council of Coimbatore on 09.08.2000 has been merged with the communal area for the purpose of 10% calculation, whereby, the http://www.judis.nic.in 10 land then owned by the third respondent as Road, has been treated as being owned by the Fifth respondent and the plots are allotted for sale by the fifth respondent.
14. Some of the plots allotted for construction of shops are located within the area prohibited for putting up any construction therein since high tension electric lines attached to tower with 110 KVA is running above the said plots. Moreover, the Electricity Rules also prohibit plots coming under high tension tower. Further portion of Plot Nos.114 and 115 has been located in the land shown as Road in the earlier plan.
15. The learned counsel further submitted that the fifth respondent had sold several plots to various individuals by converting the communal area and the above said purchasers have already been misdirected by the fifth respondent and great hardship will be caused to the above said persons who purchased plots from the fifth respondent. He further submitted that the Apex Court in catena of judgments clearly held that the place earmarked for common purpose http://www.judis.nic.in 11 cannot be converted into plots for the purpose of individual benefits. In support of his contention, he relied the following case laws:
(i) Bangalore Medical Trust vs B.S. Muddappa and Others (1991) 4 SCC 54 “ 36. Public park as a place reserved for beauty and recrea- tion was developed in 19th and 20th Century and is associat- ed with growth of the concept of equality and recognition of importance of common man.
Earlier it was a prerogative of the aristocracy and the affluent either as a result of royal grant or as a place reserved for private pleasure. 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. A private nursing home on the other hand is essentiality a commercial venture, a profit oriented industry. Service may be its morn but earn- ing is the objective. Its utility may not be undermined but a park is a necessity http://www.judis.nic.in 12 not a mere amenity. A private nursing home cannot be a substitute for a public park. No town planner would prepare a blue print without reserving space for it. Emphasis on open air and greenery has multiplied and the city or town planning or development acts of different States require even private house- owners to leave open space in front and back for lawn and fresh air. In 1984 the BD Act itself provided for reservation of not less than fifteen per cent of the total area of the lay out in a development scheme for public parks and playgrounds the sale and dispo- sition of which is prohibited under Section 38A of the Act. Absence of open space and public park, in present day when urbanisation is on increase, rural exodus is on large scale and congested areas are coming up rapidly, may given rise to health hazard. May be that it may be taken care of by a nursing home. But it is axiomatic that prevention is better than cure. What is lost by removal of a park cannot be gained by establishment of a nursing home. To say, there- fore, that by conversion of a site reserved for low lying into a private nursing http://www.judis.nic.in 13 home social welfare was being promoted was being oblivious of true character of the two and their utility.”
(ii) Dr.G.N. Khajuria and Others vs Delhi Development Authority and Others (1995) 5 SCC 762
8. We, therefore, hold that the land which was allotted to respondent No.2 was part of a park. We further hold that it was not open to the DDA to carve out any space meant for park for a nursery school. We are of the considered view that the allotment in favour of respondent No.2 was misuse of power, for reasons which need not be adverted. It is, therefore, a fit case, according to us, where the allotment in favour of respondent No.2 should be cancelled and we order accordingly. The fact that respondent No.2. has put up up some structure stated to be permanent by his counsel is not relevant, as the same has been one on a plot of land allotted to it in contravention of law. As to the submission that dislocation from the present site would cause difficulty to the tiny tots, we would observe that the same has been advanced only to get sympathy http://www.judis.nic.in 14 from the Court inasmuch as children, for whom the nursery school is meant, would travel to any other nearby place where such a school would be set up either by respondent No.2 or by any other body.
(iii) Pt.Chet Ram Vashist (dead) by L.Rs vs Municipal Corporation of Delhi (AIR 1995 SC 430)
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.
http://www.judis.nic.in 15 (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.
(iv) Krishna Nagar Residents
Welfare, Association rep by its
Secretary A.V. Dhakshnamurthy and
Others vs The Director of Town and
Country Planning, Madras–2
(2001) 3 LW 828)
8. It is not disputed that in the layout
plan, the disputed property has been
shown as a park. Therefore, there can be absolutely no justification on the part of the fourth respondent to claim the property as her own nor is it open to the authorities to concede such a demand. It may be open to the Town Planning authorities to convert the use of the land for any other public purpose other than purpose for which the land was earmarked. Normally, a park can be converted into a place for hospital, school http://www.judis.nic.in 16 or Kalyana Mandapam etc for common use. The purpose should continue to remain only as public and for the benefit of the entire colony. But in the present case, the attempt is to convert the property as belonging to the fourth respondent herself which is definitely not permissible. The very lay out is sanctioned and granted only on the understanding that all the places marked as common would continue to remain as common and no individual like the fourth respondent can claim ownership of the property, which is sought to be done in the present case and which has also found acceptance by the public authorities namely respondents 1 to 3. I am unable to sustain the said claim on the part of the fourth respondent that she is entitled to have property to be converted to her own use. Otherwise, there is no purpose in submitting a lay-out plan and the Government sanctioning the lay out plan subject to the requirements being satisfied. The learned counsel for the petitioner has rightly relied on the http://www.judis.nic.in 17 Judgment of Supreme Court in Pt. Chet Ram Vashist (Dead) by Lrs. v. Municipal Corporation of Delhi (1995) I S.C.C. 47). The Supreme Court has held that “ 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 would create an obligation in nature of the trust and may preclude the owner from transferring or selling his interest in it”.
Therefore, the attempt on the part of the fourth respondent to assert the title over the property and rights over the property to utilise the property in any manner she likes in order to get income from the property cannot at all be accepted.
Therefore, permission granted by the http://www.judis.nic.in 18 respondents 1 to 3 in this context is totally illegal and cannot be sustained.
(v) Municipal Corporation, Ludhiana and Another vs Balinder Bachan Singh (Dead) by Lrs and Others (2004) 5 SCC 182
17. For every locality green spaces and green belts have to be provided to provide lung space to the residents of the locality. A provision for green park was made by the Municipal Corporation keeping in view the minimum requirement to provide open/green space to the residents of the locality. Rajinder Kaur. mother of the plaintiffs-
respondents herself had submitted a lay out plan which comprised the present suit land. She had herself agreed to leave 25 per cent of the area under the scheme to be used by the inhabitants of the locality for common purposes including the open space area which is in dispute.
The documentary evidence which has come on record in the form of the original scheme as well as the documents http://www.judis.nic.in 19 D1 to D38 and the report submitted by the Deputy Commissioner conclusively shows that the suit land measuring 3.16 kanals was left in the scheme to be used as open space for the use of the residents of the locality.
18. Map attached with the report of the Deputy Commissioner and the site plan attached with the scheme completely tally with each other. In the scheme 3.16 kanals of land was left as open space in the centre surrounded by houses on three sides. The photographs produced also show that the land is lying vacant and is being used by the inhabitants for common purposes. It may be noted that the plots carved out in the scheme were sold by Rajinder Kaur as well as her sons including the plaintiffs-respondents. Rajinder Kaur and plaintiffs/respondents could not have sold the land without getting the scheme sanctioned as plots. It is well-known and judicial notice can be taken of the fact that residential plots sell at a much higher price than the http://www.judis.nic.in 20 agricultural land. To sell the land as plots, a part of the land has to be left to provide for common purposes such as roads, communal centre, schools and parks. Having taken advantage of selling the plots in a developed colony and charging a higher price, which were purchased by the inhabitants with the understanding that civic amenities including the park were well provided for, the plaintiffs/respondents cannot be permitted to turn around to claim the land left in the scheme for being used as a park as their personal property.
16. Per contra, learned Additional Government Pleader appearing for the fourth respondent would submit that the Secretary, Peelamedu Industrial Workers' Co-operative Housing Construction Society proposed for the revision of layout for the reason to allot the sites for its members those who are in the waiting list and also to avoid encroachments of the vacant site and approached the Coimbatore Municipal Corporation for conversion of area earmarked for communal purpose, into 13 more plots. The Corporation forwarded the http://www.judis.nic.in 21 requisition of the Peelamedu Industrial Workers Co-operative Housing Construction Society to the Coimbatore Local Planning Authority with necessary documents. The Coimbatore Local Planning Authority forwarded the same to the Director of Town and Country Planning with necessary remarks and then as per letter dated 28.04.2005, the Director of Town and Country Planning has recommended the proposed revision of layout as the conversion proposal lies in the area already allotted for communal purpose.
17. After several verifications, the Secretary to Government, Chennai, after getting reply from the Director of Town and Country Planning, finally issued G.O.(P) 245 dated 21.06.2005, permitting conversion. The learned Additional Government Pleader further submits that since 35818 sq.ft of land was already transferred by the promoters in favour of the Coimbatore Corporation and since the area handed over to Corporation is 10.33% of the total area of the lay out and also the lay out has been provided with drainage, street lights and drinking water facilities by the Coimbatore Corporation, necessary Government Order was passed permitting conversion of area more than 10% of the total area of the layout earmarked for public purpose, http://www.judis.nic.in 22 as house sites. Hence the impugned order need not be interfered with.
18. Learned counsel for the third respondent would submit that the total extent of the present layout is 7.96 acres. While it was approved for the lay out in the year 1968, an extent of 17.24% of land (59,835 sq.ft.,) was reserved under the various heads like communal purpose, Park, not built up purposes, well, children playground and club. Thereafter, in the year 1981, the then existing Coimbatore Municipality was upgraded as Corporation and the Singanallur Municipality was also merged along with this Corporation.
The fifth respondent had executed Gift Deeds vide Document No.977/2000 dated 19.06.2000 and the Document No.1712/2001 dated 31.10.2001 in favour of the Corporation and an area to the extent of 35,818 sq.ft was handed over to this Corporation. Though there were certain difficulties in the initial period in taking possession due to the then existing encroachments, the same was cleared and possession was given to the respondent Corporation.
http://www.judis.nic.in 23
19. Subsequently, by executing another Gift Deed, the road portions within the layout to an extent of 76,628 sq.ft was also handed over to the respondent Corporation. However, the land, which was reserved as per the original plan 35/68 was not handed over to the Corporation. The fifth respondent Society submitted an application along with a revised plan for the conversion of a portion of the land, which was originally reserved for the common purpose into residential plots. On the basis of that application and after due field inspection, an inspection report dated 14.05.2003 was submitted to the fourth respondent for their further action.
20. The learned counsel further submitted that under the provisions of Coimbatore City Municipal Corporation Act, while developing Layout, it is mandatory obligation on the part of the Developer to reserve 10% of the layout area towards common purpose. As per the Regulation No.9(2)(d) it was stipulated that wherever the extent of the layout is more than 2500 sq.mtrs, the developer shall reserve 10% of the area to be maintained as Open Space for communal and Recreation purpose. Under Regulation No.9(3)(ii) the power of exemption or waiver of the above condition is http://www.judis.nic.in 24 vested with the Government alone.
21. The learned counsel also submitted that the issue regarding the conversion of those portions of layout which are saleable like the areas reserved for Marriage Hall, communal Centre, School etc., was elaborately considered by the second respondent. The fifth respondent was the owner of the land and the plot owners have the right to enjoy the common area, which was earmarked in the original plan. However, the learned counsel for the 3rd respondent would submit that the present conversion is against the decision of the Hon'ble Apex Court as well as the Division Bench of this Court that the land allotted for common purpose cannot be converted into house sites in favour of individuals. In support of his contention the learned counsel for the third respondent relied on the following case laws:
(i) Sri Devi Nagar Residences Welfare Association vs Subbathal and others (2007 3 LW 259)
11. The open space in a residential area or in busy townships is treated as lung space of the area. It provides fresh air and refreshment to the persons in the http://www.judis.nic.in 25 neighbourhood. Its presence ameliorates the hazards of pollution and it has to be preserved and protected for the sustenance of the men around. It is for the health and well- being of the inhabitants of the residential area. The same cannot be bartered for any other purpose. Apart from that, in view of the conditions imposed by the fifth respondent, by his proceedings dated 17.7.1974 addressed to the Executive Officer, Ganapathy Town Panchayat, which remain unchallenged by the owners of the layout land for all these years, the fourth respondent is estopped from using the area set apart as open space, for any other purpose.
12. Where open space for construction of public park is preserved and earmarked in the Plan for Development of a planned town, the Authorities cannot ignore or neglect to develop that open space into a public park within reasonable time. Unless an open space reserved for a public park is developed as such, the execution of the plan will remain incomplete. Buildings, as proposed in the plan, may have come up, amenities and civic http://www.judis.nic.in 26 amenities may have been provided and the people may have started living in the colony, yet the plan cannot be said to have been fully executed, if an open space meant for a park is not developed as such. The duty of the authorities is to implement the plan in entirety making the area beautiful with attractive public parks. Their job is not over when the area becomes habitable.
13. Good parks expansively laid out are not only for aesthetic appreciation, but in the fast developing towns having conglomeration of buildings, they are a necessity. In crowded towns where a resident does not get anything but atmosphere polluted by smoke and fumes emitted by endless vehicular traffic and the factories, the efficacy of beautifully laid out parks is no less than that of lungs to human beings. It is the verdant cover provided by public parks and greenbelts in a town, which renders considerable relief to the restless public. Hence the importance of public parks cannot be under-estimated. Private lawns or public parks are not a luxury, as they were considered in the past. A public park is a gift http://www.judis.nic.in 27 of modern civilization, and is a significant factor for the improvement of the quality of life. Open space for a public park is an essential feature of modern planning and development, as it greatly contributes to the improvement of social ecology.
14. We are therefore, of the firm opinion, that the statutes in force in India and abroad reserving open spaces for parks and play grounds are the legislative attempt to eliminate the misery of disreputably housing condition caused by urbanisation. Crowded urban areas tend to spread disease, crime and immorality. Reservation of one space for parks and play ground is universally recognised as a legitimate exercise of statutory power rationally related to the protection of the residents of the locality from the ill- effects of urbanisation and the Apex Court decisions referred supra, fully support the view that the area set apart for park as per the approved lay out plan, cannot be used or transferred for any other purpose.
(ii) K. Rajamani vs Alamunagar Residents' Welfare http://www.judis.nic.in 28 Association (2011 (1) CTC 257)
18. The contention of Mr.K.M.Vijayan, learned senior counsel for the appellants is that the Government would have jurisdiction to de-reserve the open space in a layout. This argument is untenable, as the power of the Government to vary, revoke or modify a regional plan under Section 32 could be exercised before the lands are acquired under Section 36 and before the lands are placed at the disposal of the new town development authority and not otherwise. Hence, the power of the Government to alter the conditions imposed in the layout is not available and that too, when the entire portion of the land is plotted out and sold to various parties leaving only the open space for public use. In this context, the judgment of the Apex Court in Civil Appeal Nos.7305- 7306 of 2010 dated 1.9.2010 in the case of Pillayarpatti Karpaga Vinayagar Koil Nagarathar Trust thru Ramanathan v.
Karpaga Nagar Nala Urimai Sangam rep.by Secretary and others was brought to our notice. In that case, the layout to an extent http://www.judis.nic.in 29 of 76.12 acres of land was prepared and approved with 910 plots by the town panchayat as per the Town Panchayat Building Rules. Later, Tallakulam Panchayat was merged with Madurai City Municipal Corporation during the year 1974 and the laws applicable to Madurai City Municipal Corporation were made applicable to Tallakulam Panchayat. Hence the conversion application for revalidation of the original plan was submitted to the Corporation. In that plan, 40 plots were shown as reserved for school. Thereafter, in the year 1979-80, the local planning authority of Corporation prepared a detailed development plan including the lands covered in the said layout. In the said plan, the area relating to 40 plots was demarcated and shown as residential area. As there was difference in the classification in respect of 1975 plan and 1980 plan, the local planning authority cancelled the 1975 plan with a direction that the 1980 plan alone would be valid.
However, fresh application was submitted for putting up construction in Plot Nos.276 and 369 and the same was rejected by the http://www.judis.nic.in 30 Corporation, which was questioned by the applicant therein. The High Court by its order restored the application in respect of Plot Nos.276 and 369 and directed the Municipal Corporation to pass fresh orders. The High Court also held that the application could be rejected only if the said area comprising of 40 plots was in the meantime classified as reserved for public purpose in the detailed development plan. Only in that context, the Apex Court went into the question of the power of the appropriate planning authority in directing the applicant to keep reserved area not exceeding ten percent of the layout for common purpose in addition to the area provided for roads, streets. In our opinion, the said judgment is not applicable to the facts of this case as, in the present case, the question as to the power of the Government to de-reserve the land which was earmarked for public purpose in the layout is involved. In that view of the matter, the contention of Mr.K.M.Vijayan, learned senior counsel that the Government has power to de-reserve the http://www.judis.nic.in 31 land earmarked for public purpose to housing plots cannot be accepted. The learned Judge has rightly held that the Government has no power to de-reserve the open space and that finding requires no interference. Accordingly, we answer point no.(i).
20. This Court has also ruled that the area reserved for public purpose cannot be altered to be put to use for any other purpose in the decision in Villupuram Municipality represented by its Commissioner, Villupuram v. M.Subramanian and others, (2000) 3 MLJ
375. A Division Bench of this Court in Karpaga Nagar Nala Urimai Sangam rep.by its Secretary, Shanmugavel v. Municipal Administration and Water Supply Department rep.by its Secretary, Chennai and others, (2007) 4 MLJ 1006, after considering in detail the provisions of the Act, has held that the open space earmarked for public purpose cannot be altered. This Court has further held that the layout sanctioned by the municipal authority cannot be altered by the Government by issuance of a Government Order de-reserving such plots.
http://www.judis.nic.in 32
21. A survey of the above law shows that the land once earmarked for public purpose cannot be earmarked for any other purpose and, particularly, to de-reserve or put to use as housing plots. (See Krishna Nagar Residents Welfare Association v. Director of Town and Country Planning, (2001) 3 LW
828.)
(iii) Kirubakaran & Others vs The Commissioner (Estt.,) Corporation of Coimbatore (2013) 5 LW 597 “12. In this case, the contention of the appellants are that they are proposing to construct a hospital in the subject land, which will serve public purpose and an affidavit is also filed in writ appeal stage stating that 50% of the patients in the proposed hospital will be treated free of costs. Whether the establishment of a Private Nursing Home in an open space reserved for public park will serve public purpose was already considered by the Hon'ble Supreme Court in the decision reported in (1991) 4 SCC 54 (Bangalore Medical Trust v. B.S.Muddappa). The argument http://www.judis.nic.in 33 advanced on similar line that the Hospital with Research Centre and free service being more important from social angle, the inhabitants in the locality cannot be said to suffer any injury, much less substantial injury, was totally rejected by the Hon'ble Supreme Court.
14. "Public purpose", though cannot be given a precise definition, Section 3(f) of the Land Acquisition Act, 1894 gives the meaning of the expression 'public purpose', which is an inclusive definition. Section 3(f)(vi) to (viii) reads as follows:
"3(f)(vi) the provision of land for carrying out any educational, housing, health or slum clearance scheme sponsored by Government or by any authority established by Government for carrying out any such scheme, or, with the prior approval of the appropriate Government, by a locan authority, or a society registered under the Societies Registration Act, 1860 (XXXI of 1860), or under any correspondent law for the time being in force in a State, or a co-operative society within the meaning of any law relating to co-operative societies for the http://www.judis.nic.in 34 time being in force in any State;
(vii) the provision of land for any other scheme of development sponsored by Government, or, with the prior approval of the appropriate Government, by a local authority;
(viii) the provision of any premises or building for locating a public office."
The said provision was interpreted by the Hon'ble Supreme Court in the decision reported in (1996) 6 SCC 464 (Ganapathi National Middle School v. M.Durai Kannan), wherein the question arose was as to whether an educational institution aided by the State Government is inclusive of "public purpose". The Hon'ble Supreme Court held that such school receiving aid is an instrumentality of the State, and therefore lands can be acquired for such aided school for "public purpose". In another decision reported in (2011) 6 SCC 125 (Humanity v. State of West Bengal) the Hon'ble Supreme Court while considering the setting up of private school, observed that it may have some element of public interest and http://www.judis.nic.in 35 may not be a totally business enterprise, but profit motive cannot be ruled out. In paragraph 26 the Hon'ble Supreme Court held thus, "26. The setting up of a private school may have some elements of public interest in it but a Constitution Bench of this Court has held in T.M.A.Pai Foundative v. State of Karnataka ((2002) 8 SCC 481) that the right of a citizen, which is not claiming minority rights to set up a private educational institution is part of its fundamental right to carry on an occupation under Article 19(1)(g). Such an enterprise may not be a totally business enterprise but profit motive cannot be ruled out."
22. Mr.M.S. Krishnan, learned Senior Counsel appearing for the Respondents 6 to 12 submitted that originally the property measuring an extent of 7 acres and 96 cents belonged to one V. Rangasamy Naidu and its members, who were the owners of the R.K. Mills Private Limited, who with an intent for providing house sites at low cost for their workers, formed the Peelamedu Industrial Workers Co-operative House Construction Society Ltd bearing No.K-1555 as the 5th respondent herein. The Society had in the year http://www.judis.nic.in 36 1955 submitted a layout plan for the approval of the Town and Country Planning Authorities and in this layout, 92 housing sites measuring about 4 acres, 2 cents and 8 roads to an extent of 2 acres and 1.94 acres were shown as reserved for communal purposes. This meant that an extent of 24.5% out of the total extent of 7.96 acres was shown reserved for communal purposes. As the number of members seeking house sites increased, a revised plan was submitted for approval showing an additional 4 sites being reserved for housing purposes and 53% being reserved for the purposes of roads and 22% was reserved for communal purposes. This meant that an extent of 24.5 out of the total extent of 7.96 acres was shown reserved for communal purposes.
23. Once again a third revised plan was submitted where an additional 9 sites was kept aside for housing and ultimately an extent of 15.9% was reserved for communal purposes. The original plan, by the year 1968, had undergone three revisions. All these revisions were necessitated on account of the additional demand being made for house sites.
http://www.judis.nic.in 37
24. The respondents No.6 to 12 herein had approached the 5th respondent's society to allot house sites to them since there was a large area reserved for communal purpose, which could not be put to use for which it had been reserved. Thereafter, in the executive committee meeting of the 5th respondent's society on 20.04.1983 it was resolved to convert the excess vacant land to house sites and allot these sites to those persons who had applied for house sites which included respondents 6 to 12. Although the plan had shown the roads and other lands reserved for communal purposes, the same could not be gifted to the 3rd respondent since there were extensive encroachments and the 3rd respondent was demanding lands free from encumbrance. Thereafter, the 5th respondent had decided to allot the lands to the respondents 6 to 12 herein, who had worked along with the 5th respondent's society to properly lay the roads, install street lights and provide for ditches etc., before handing over it to the 3rd respondent in the year 2000.
25. Upon the respondents 6 to 12's initiative, the Deputy Registrar (Housing), Coimbatore Division had instructed the Special Officer of the 5th respondent society to convert the classification of the http://www.judis.nic.in 38 sites allotted to the respondents 6 to 12 from that of communal purpose to house sites. Finally, after following the procedure, the approval for the revised plan was granted under proceedings bearing LTP No.114/2005.
26. The said revised plan was totally in keeping with the provisions of the Coimbatore City Municipal Corporation Act in as much as an extent of over 10% continued to remain allocated for communal purposes. This vacant space of 10.3% was over and above the areas allotted for the roads as well as the reserved sites and was therefore totally in line with the provisions of Sec.250(2) of the Act. For in fact, Sec.250(2) of the Act mandates for reserving only 10% of the vacant space for any layout. Accordingly, 10% of the vacant site was reserved for communal purpose and the balance vacant site was converted into house sites. Thereafter, a gift deed was executed in favour of the third respondent by Gift Deed dated 14.08.2000 and 09.08.2000.
27. The learned Senior Counsel further submitted that a Resolution was passed on 19.04.1985 and the respondents paid a sum of Rs.1000/-each as advance amount for allotment of plots and http://www.judis.nic.in 39 thereafter, in the year 1992, the then Deputy Registrar (Housing), Coimbatore Division had instructed the Special Officer of the 5th respondent society to convert the classification of the sites allotted to the respondents 6 to 12 from that of communal purpose to house sites after collecting Rs.4,000/- and the respondents purchased the property on 18.11.2005 i.e., after the Government passing the impugned Order on 21.06.2005.
28. It is further submitted that earlier one S. Aruchamy filed a Writ Petition in W.P.No.33778 of 2007 directing the respondents to take action for violation of G.O.Ms.No.245, Municipal Administration and Water Supply (MA1) Department, dated 21.06.2005, wherein, this Court by order dated 25.10.2007 issued direction to consider the representation. As against that order, the respondents 6 to 12 filed a Writ Appeal in WA No.711 of 2008 and the Division Bench of this Court by Judgment dated 30.10.2008 disposed of the Writ Appeal by directing the 5th respondent therein to consider the grievance of the appellants therein, who are the respondents 6 to 12 herein on the basis of the detailed representation within a period of one week and http://www.judis.nic.in 40 the Division Bench also observed and directed the fifth respondent to consider whether 10% of the total area is kept vacant for communal purpose and if the 5th respondent herein found that 10% of the total layout is kept vacant for communal purpose, the appellants therein should be allowed to make construction on the space which are purchased by them. Therefore, the Division Bench of this Court has permitted the respondents 6 to 12 for construction of the site, allotted by the 5th respondent. Hence, contrary, to the above said direction, the present writ petition is unsustainable and accordingly, he prays for dismissal of the petition.
29. Mr.R. Singaravelan, learned Senior Counsel appearing for the Respondents 13 to 19 would submit that the respondents 13 to 19 are members of the Society and they are entitled to get allotment of plots in pursuance of Government No.(P) 245 passed by the first respondent and after considering the Coimbatore City Municipal Corporation Act and after keeping 10% reserved space for communal purpose, the excess land were allotted by the 5th respondent, which is within the domain of the 5th respondent, which cannot be interfered with unless the petitioner establishes any malafide on the part of the http://www.judis.nic.in 41 5th respondent as well as other respondents.
30. The learned Senior Counsel appearing for the respondents No.13 to 19 reiterated the submissions of the learned Senior Counsel appearing for the Respondents No.6 to 12 and further added that that in the report of the Assistant Commissioner it is stated that all the necessary charges have been paid and also based on the Resolution dated 19.04.1985 passed by the Municipal Council, all the basic amenities had been granted to them. Despite the inspection report, the 5th respondent by his Proceedings in Na.Ka.No.1585/2003-3 dated 13.06.2003 to the 3rd respondent stated that there is no basis for the conversion as sought for by the 6th respondent and no resolution was passed by the Corporation, but, then the 5th respondent had forwarded the application of the 6th respondent to the 3rd respondent. Thereafter, it was forwarded to the Government after analysing all the aspects of the issue.
31. The Government after careful consideration had passed an http://www.judis.nic.in 42 order in G.O.Ms.No.245 dated 21.06.2005 permitting the conversion as requested for. Thereafter, one Aruchamy filed a Writ Petition in W.P.No.33778 of 2007 and the writ petition was disposed of on 25.10.2007 directing the Society to dispose of the legal notice of the petitioner therein dated 24.09.2007. Challenging the same, Writ Appeal in W.A.No.711 of 2008 was filed and this Court in paragraph 3 of the order has held as follows:-
“ 3. The Writ Court has not dealt with the matter except directing the 5th respondent herein to consider representation of the writ petitioner who is first respondent herein. It is not in dispute that pursuant to the order of the Writ Court, no order is passed by the 5th respondent. In that view of the matter, we are directing the fifth respondent to consider the grievances of the appellants before us on the basis of a detailed representation, within a period of one week from today. While considering the said representation, the fifth respondent must consider whether 10 per cent of total area is kept vacant for communal purpose. If it is found that 10 per cent of total lay out is kept http://www.judis.nic.in 43 vacant for communal purpose, in that case, the appellant should be allowed to make construction on the space which are purchased by them. The fifth respondent if necessary, may take the help of Surveyor at the cost of the appellants.” and the Division Bench approved the conversion.
32. In support of his contention, the learned Senior Counsel relied on the decision in the case of K. Rajamani vs Alamunagar Residents' Welfare Association (2011 (1) CTC 257), wherein, in paragraph-3, this Court held as follows:-
“ 3. Alumunagar on the Sathyamangalam Road of Coimbatore was formed in the year 1983. A layout was approved by the Deputy Director, Local Planning Authority as well as the Commissioner, Coimbatore City Municipal Corporation in L.P.R(C) No. 22 of 1983. The layout was in respect of the land situate in T.S No. 1278 part to a total extent of 2.428 hectares, approximately equivalent to six acres of land. The layout provided for 54 plots and an area of about 51 cents (20,973 sq.ft http://www.judis.nic.in 44 approx.) in the northern portion of the layout was left for public purpose, namely, to establish a park and to maintain certain wells. On the basis of the approved layout, 54 plots have been sold to various individuals and the land earmarked for public purpose was kept open. The Appellants had purchased certain extent of land individually in Survey No. 1278 in the layout in Alumunagar and put up constructions. The Commissioner, Coimbatore City Municipal Corporation issued notices under Section 296(3) for demolition. The action of the Municipal Corporation was questioned by the Appellants in W.P No. 14327 of 1995 and were unsuccessful. The Writ Appeal preferred by them was also dismissed for default on 3.4.2008 In the meantime, the Appellants approached the Government for re-classification of the land and the same was rejected in G.O.Ms No. 231, Municipal Administration and Water Supply Department dated 26.6.2002 This order was not questioned by the Appellants. Thereafter, the Appellants once again made a further request by letter dated 14.2.2005 for change in the usage of land from public purpose to http://www.judis.nic.in 45 housing plot through their Power of Attorney. That request was considered and accepted by the Government in G.O(R) No. 80 dated 15.2.2005 Apparently, the Government took note of the resolution of the Municipal Corporation dated 27.11.1995, whereby the Municipal Corporation resolved to take over the land for maintaining park, etc., which was questioned by the Appellants in W.P No. 25371 of 2002.”
33. I have considered the submissions of the learned counsels appearing for either parties and perused the materials available on record. The following issues arise for consideration:-
i) Whether the first respondent has power to order de-reservation of a land reserved for public purpose in a layout for use of other purposes?
ii) Whether the Open Space earmarked in a layout for use of park, etc., could be allowed to be put in use for residential purpose of respondents 6 to 18?
http://www.judis.nic.in 46
iii) Whether the fifth respondent has power to convert the land which was originally allotted as communal lands, as house sites in favour of respondents 6 to 18?
34. Since all the issues are common in nature and all are interlocked to each other, accordingly, this court answered commonly.
35. The object of the Tamil Nadu Town and Country Planning Act, 1971 was to regulate the development of towns so as to secure to its present and future inhabitants, sanitary conditions, amenities and convenience in the forming of layout and use of lands. Open space is an essential feature in any development, as it not only serves as lung space but also meets the communal and recreational requirements of the inhabitants. The reserved space is primarily meant for the use of the occupants in any development. The residents or purchasers of the plots are also obligated to maintain the same as reserved space, namely, park etc., http://www.judis.nic.in 47
36. Keeping in mind the above objects, now I shall consider the present facts of the case.
37. It is not in dispute that the petitioner is one of the members of the 5th respondent society since 1976. The 5th respondent society acquired land at Sowripalayam Village for the benefit of its members for promoting house sites. Initially, in the year 1955, layout plan was submitted for approval to the Town and Country Planning Authority for forming 92 house sites in 4 acres and 2 cents and 8 roads measuring nearly 2 acres. At that time 24.5% of the lay out was shown as reserved for communal purposes.
38. In 1963, 4 additional sites were approved which led to reduction of land reserved for communal purposes to 22%.
39. In 1968, approval was granted for 9 more sites and lands allotted for communal purpose got reduced to 15.9%. These revisions were necessitated in the light of additional members being inducted and there being an additional demand for house sites.
http://www.judis.nic.in 48
40. While doing so, in the year 1984, it appears that Resolutions had been passed by the Society to allot additional house sites for its members for their welfare.
41. On 30.05.1991, the second respondent issued Circular stating that when there are no takers for lands allotted for public purpose like Kalyana Mandapam, community Hall, School, Shop etc, land owners can seek conversion of such lands into residential plots, however, with a rider that 10% space of the total layout should be reserved for parks and open spaces and the same being given to the local body by a gift deed.
42. On 14.06.2000 the 5th respondent executed gift deed to the 3rd respondent.
43. On 19.05.2003, the 3rd respondent sent a letter to the 4th respondent forwarding the revised layout plan prepared in accordance with the circular issued by the Second respondent stated supra and application for further action along with his notes stating that as against a required extent of 79.6 cents towards the 10% http://www.judis.nic.in 49 allotment for communal purposes the layout has an extent of 82.22 cents available for communal purposes.
44. On 13.06.2003 the 4th respondent recommends for approval of the 2nd respondent and on 03.12.2003 the 2nd respondent recommended to the 1st respondent for approving the revised layout.
On 21.06.2005 the 1st respondent approved the revised plan.
45. Undoubtedly, 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 question and he holds the land for the benefit of the society or the public in general.
46. Without minding the above principle, if the Government alienate the communal land in favour of individual, in future, no lung space will be available for future generation.
47. In the present case, in the year 1955, as stated by the http://www.judis.nic.in 50 learned Senior Counsel for the respondents 6 to 12, 24.5% was shown as reserved for communal purposes; in 1963, it was reduced to 22% and in 1968, again reduced to 15.9%. Now, by way of implementing the Government Order Government No.(P) 245 dated 21.06.2005, it was reduced to 10% as minimum open space, which is against the original plan, which commenced in the year 1955. It is relevant to extract the relevant paragraph in the case of Pt.Chet Ram Vashist (dead) by L.Rs vs Municipal Corporation of Delhi reported in (1995) 1 SCC 47.
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 http://www.judis.nic.in 51 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 http://www.judis.nic.in 52 school was an order for transfer without there being any sanction for the same in law.
48. On perusal of the above decision, the Hon'ble Apex Court makes it clear that 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 question and he holds the land for the benefit of the society or the public in general.
49. When that being so, the 1st respondent has no right to consider the 5th respondent's request for converting the communal land to house sites over which it has no ownership, which decision is legally unsustainable.
50. In view of the above decision by the Hon'ble Apex Court, the State Government cannot have any jurisdiction to alter the character of the land area already reserved for communal purposes.
http://www.judis.nic.in 53
51. In the present case, the 5th respondent and the 1st respondent had undertaken the exercise in favour of the private individuals by converting the lands meant for communal purposes, which is unsustainable.
52. On perusal of the counter affidavit filed by the respondents 6 to 12 it reveals that they have approached the 5th respondent society to allot house sites to them since there were large area reserved for communal purpose which cannot be put to use. Based on the request, 5th respondent society on 20.04.1983 convened an Executive Meeting and resolved to convert excess communal land to house sites and allot those sites to these respondents who had applied for.
53. Further it appears that there were encroachments in the communal land and in order to remove the encroachments from the communal area, these lands were converted into house sites.
54. Accordingly, 5th respondent recommended to 1st http://www.judis.nic.in 54 respondent for converting these communal sites into house sites and the first respondent passed the Government Order, approving the recommendation made by the 5th respondent for converting the land into house sites, which is legally unsustainable.
55. It is observed from the records and averments that the 5th respondent, in a well designed manner, in one way or other, has defeated the letter and spirit of the original plan, which was prepared in the year 1955 and reduced the space provided for communal purposes, gradually from 24.5 to 22%, 22% to 15.9% and now it has been reduced to 10% in order to favour the private respondents, to which it has no right to do. Further, the 5th respondent, in his counter, stated that the 5th respondent, being a Co-operative Society, a non profit making body constituted for the benefit of members followed the procedure established under the statute and obtained approval for the revised plan under proceedings LPT No.114 of 2005. He also stated that since most of the vacant areas in the layout were remaining unused it was put forth to the Society to convert the sites meant for communal purpose to house sites.
http://www.judis.nic.in 55
56. In the present case, the private respondents viz., respondents No.6 to 19 started becoming membership of the Society in 1983 onwards based on the Resolution dated 19.04.1985 and they were assigned membership after collecting Rs.1000/- as membership fee and thereafter, persuaded 5th respondent for allotment of plots by converting the above said common land in their favour and even on perusal of the counter affidavit filed by the respondents No.6 to 12, they admitted that they have become members of the Society in the year 1983 and in paragraph-3 they clearly stated that they have approached the 5th respondent's Society to allot house sites to them since there was a large area reserved for communal purpose which could not be put to use for which it had been reserved.
57. From the above, this Court can easily come to the conclusion that the private respondents persuaded the 5th respondent for allotment of common area in their favour with the full knowledge that they are seeking for conversion of common area in their favour.
In view of the knowledge of the private respondents with regard to the nature of the land, this Court cannot presume that private respondents are innocent purchasers and from the year 1983 they persuaded 5th http://www.judis.nic.in 56 respondent and the Government for allotment of common land to them for house sites and after passing of the impugned Government Order, the lands were sold to private respondents viz., 6 to 19.
58. The 5th respondent in the sale deed, in paragraph No.4, has stated that the disputed lands were divided into plots and thereafter approved by the Director of Town Planning Madras No.LPH/DTP/37/55, Revised No.LPDM/DTD No.35/68 and now revised by DTP Chennai as 114/2005 under Government Order No.245/2005 dated 21.06.2005 to be amended more particularly described in the schedule 'B' thereunder was allotted to the purchaser Tmt.N. Lakshmi Bai on 20.04.1983, who is the 10th respondent herein was allotted in the year 1983.
59. On perusal of the Sale Deed it makes it clear that conversion of the land was allotted to 6th respondent and the 5th respondent collected Rs.1,25,000/- in the year 1983 onwards.
Therefore, it reveals that already the 5th respondent allotted the land in favour of the private respondents in the year 1983 itself and collected Rs.1,25,000/- in the year 1983 itself and executed sale deed.
http://www.judis.nic.in 57 Thereafter, he persuaded the conversion of the common land and without converting the land, the 5th respondent allotted the land in favour of the private respondents, which is legally unsustainable one.
60. Mr.M.S. Krishnan, learned Senior Counsel appearing for the respondents 6 to 12 vehemently contended that Sec.250(2) of the Act mandates for reserving only 10% of the vacant space in any layout for communal purpose which has been complied with and contended that the action of the fifth respondent is in order. Sec.250(2) of the Coimbatore City Municipal Corporation Act,1981 is extracted hereunder:
250. Owners obligation to make a street when disposing of lands as building sites:-
(1) .....
(2) In regard to the laying out or making of any such street or streets, the provisions of section 251 shall apply, subject to the conditions that the owner shall remit a sum not exceeding 50 per cent of the estimated cost of layout improvements in the land and that the owner shall also reserve not http://www.judis.nic.in 58 exceeding 10 per cent of the layout for the common purposes in addition to the area provided for laying out streets. If any owner contravenes any of the conditions specified above, he shall be liable for prosecution.”
61. However, on perusal of the records, it is clear that the original lay out was formed in the year 1955 with the open space reservation of 24.5% which was subsequently reduced to 22% and then reduced to 15.9% which has been further reduced now to only 10%. In fact, the 5th respondent as well as the 3rd respondent have to mandatarily maintain the original open space of 24.5% which was originally approved and available in the year 1955. The provision relied upon by the respondents that it is sufficient to maintain 10% of the total lay out area as open space for communal purposes is not applicable to the present case. The provision relied on by the learned Senior Counsel cannot be applied retrospectively and the provision will be applicable prospectively that too only for a new lay out. Since the present layout came into existence in the year 1955, the said provision is not applicable to the present case on hand. Even on perusal of the http://www.judis.nic.in 59 said provision that the owner, who promote the layout, reserve open space not exceeding 10% of the layout for the communal purpose in addition to the area provided for laying out streets. The said provision mandate for reserving 10%. However, in the present case, the layout approved in the year 1955 by reserving 24.% of the Open Space.
Hence the said provision cannot apply for the layout, which was approved in the year 1955.
62. The very same issue was elaborately discussed by the Hon'ble Apex Court in the case of Bangalore Medical Trust vs Muddappa and Others reported in (1991) 4 SCC 54 and by this Court in Sri Devi Nagar Residences Welfare Association vs Subbathal and others (2007 3 LW 259), wherein, it has been categorically held that public common places, earmarked for public purpose, cannot be alienated to the private individuals or any other purpose.
63. In view of the above decisions, all the issues are answered against the respondents.
http://www.judis.nic.in 60
64. For the reasons stated above, the Order passed by the first respondent in Government No.(P) 245 dated 21.06.2005 is hereby quashed and the Writ Petition is allowed. Consequently, the sale deed executed by the 5th respondent based on the above Government Order is declared as null and void and the 5 th respondent is directed to refund the amount to the private respondents. No costs.
18 -07-2019 sr Speaking Order/Non-Speaking Order Index:yes/no website:yes/no To
1. The Secretary, Tamil Nadu Town Administrative and Water Supply Department, Secretariat, Chennai – 9.
2. The Director, Town and Countries Planning Authority, No.807, Anna Salai, Chennai – 600 002
3. The Commissioner, Coimbatore City Municipal Corporation, Town Hall, Coimbatore http://www.judis.nic.in 61
4. Member-Secretary, The Local Town Planning Authority, Raj Naidu Street, Sivanantha Colony, Coimbatore – 12.
5. The Secretary, Peelamedu Industrial Worker's Co-operative House Construction Society Ltd., No.2, Ramasamy aidu Nagar, V.K. Road, Coimbatore-35.
http://www.judis.nic.in 62 M. DHANDAPANI,J., sr Pre-Delivery Order in W.P.No.34395 of 2007 18-07-2019 http://www.judis.nic.in