Madras High Court
A Alamu Nagar vs State Of Tamil Nadu on 4 January, 2010
Author: Chitra Venkataraman
Bench: Chitra Venkataraman
In the High Court of Judicature at Madras Dated: 04.01.2010 Coram The Honourable Mrs.JUSTICE CHITRA VENKATARAMAN Writ Petition Nos.23980 of 2005 & 25371 of 2002 Alamunagar Residents Welfare Association, a society registered under the Societies Registration Act, having its regn.No.131/2005, 1-A Alamu Nagar, Sathi Road, Coimbatore 641 012 rep. By its President M.Balasubramanian .... Petitioner in W.P.No.23980 of 2005 Vs. 1. State of Tamil Nadu rep. by its Secretary to Government, Municipal Administration & Water Supply Department, Fort St. George, Chennai 600 009. 2. The Special Commissioner, Town & Country Planning Department, 807, Anna Salai, Chennai 600 002. 3. Coimbatore City Municipal Corporation, rep. By its Commissioner, Coimbatore. .... Respondents in both W.Ps. 4. Smt.K.R.Rajamani 5. M.Chinna Alamu 6. R.M.Meenakshi .... Respondents in W.P.No.23980/05 & Petitioners in W.P.No.25371/02 7.V.Ramaswamy .... Respondent in W.P.No.23980/05 W.P.No.23980 of 2005: PETITION under Article 226 of The Constitution of India praying for the issuance of writ of certiorarified mandamus calling for the records relating to G.O.Ms.No.80 dated 15.2.2005 issued by the first respondent, Municipal Administration & Water Supply Department, Government of Tamil Nadu and quash the same and direct respondents 1 to 3 to retain and maintain the 51 cents in T.S.No.1278 part, left for public usage in Alamunagar Layout, Coimbatore as public park and for other public purposes. W.P.No.25371 of 2002: PETITION under Article 226 of The Constitution of India praying for the issuance of writ of certiorarified mandamus calling for the records of the respondents culminating in the third respondent's resolution No.2369 dated 27.11.1995 quash the same and further direct the respondents to forbear from initiating any action to deprive the petitioner's their rights of ownership and possession to the petitioner's property situated at T.S.No.11/1278 Alamu Nagar Coimbatore. For Petitioners in W.P.No. 25371 of 2002 and Respondents 4 to 7 in W.P.No.23980/05 : Mr.K.M.Vijayan Senior Advocate For M/s.B.Harikrishnan For Petitioner in W.P.No.23980 of 2005 : Mr.G.Rajagopalan Senior Advocate for M/s.G.R.Associates For 3rd respondent in both W.Ps. : Mr.R.Sivakumar For respondents 1 & 2 in both W.Ps. : Mrs.Malarvizhi Udayakumar Special Government Pleader ------- C O M M O N O R D E R
Writ Petition No.23980 of 2005 is by the Alamu Nagar Residents Welfare Association seeking a writ of certiorarified mandamus to quash G.O.Ms.No.80 dated 15.2.2005 issued by the first respondent, namely, the State of Tamil Nadu by Secretary to Government, Municipal Administration & Water Supply Department, Government of Tamil Nadu and to direct respondents 1 to 3 to retain and maintain 51 cents in T.S.No.1278 part, left for public purpose in Alamu Nagar layout and for other public purposes.
2. W.P.No.25371 of 2002 is by respondents-4 to 6 in W.P.No. 23980 of 2005 to quash the resolution of the third respondent in Resolution No.2369 dated 27.11.1995 and to direct the respondents to forbear from initiating any action to deprive the petitioner's rights of ownership and possession of the properties situated in T.S.No.11/1278, Alamu Nagar, Coimbatore.
3. Considering the common contentions in both the writ petitions, a common order is passed taking the status of the parties as given in W.P.No.23980 of 2005.
4. The Writ Petitioners in W.P.No.23980 of 2005, hereinafter referred to as "The Association", are the purchasers of the plot in the approved layout, by name, Alamu Nagar in Sathyamalgalam Road, Coimbatore. The said layout was formed in the year 1983, approved by the statutory authorities, namely, the Deputy Director, Local Planning Authority and by the Coimbatore City Municipal Corporation. The total extent of the layout is 2.428 hectares equivalent to 6 acres. The layout consists of 54 plots and an area of 51 cents was reserved for public purpose for establishing a park and for maintaining the well. The purchasers of the various plots have put up their construction and are in enjoyment of the same. On coming to know that there were attempts to put up certain construction in the area reserved for public purpose, with a view to protect 51 cents of land reserved for public purpose, an association was formed by the purchasers under the name "Alamu Nagar Residents Welfare Association", registered on 1.6.2005. On verification of the construction activities going on in the reserved place for public purpose, the Association came to know about G.O.Ms.No.80 dated 15.2.2005, whereby, the Government had de-reserved the portion of land reserved for public purpose and converted the same as house site. The Association learnt that the said purchasers, respondents-4 to 6, who are the writ petitioners in W.P.No.25371 of 2002, had given a petition on 14.2.2005 to the Government for de-reservation of the land allotted for public purpose and the impugned proceedings was passed on 15.2.2005 permitting conversion of the area reserved for public purpose as house sites to an extent of 12,850 sq.ft. out of the total extent of 23,000 sq.ft.
5. Writ Petitioners in W.P.No.25371 of 2002/respondents-4 to 6 in W.P.No.23980 of 2005, who are the purchasers of the portion of the land under separate sale deeds dated 23.12.1991, represented by their Power Agent, respondent No.7, have questioned the Resolution dated 27.11.1995 passed by the Coimbatore City Municipal Corporation, third respondent in W.P.No.23980 of 2005, taking possession of the reserved area for public purpose under the layout sanctioned scheme.
6. Aggrieved by the conversion of the land reserved for public purpose into house sites, the Alamu Nagar Residents Welfare Association have filed the writ petition in W.P.No.23980 of 2005 challenging the Government Order stating that the same is against the sanctioned layout. It is also stated that while sanctioning the layout, the site had been earmarked for public purpose; hence the character of the land as reserved area has to be retained as it is, as the original owner holds the same as a trustee of the public cause. Consequently, the purchase of the property by respondents-4 to 6 under Sale deeds dated 23.12.1991 is void ab initio.
7. Respondents-4 to 6 in W.P.No.23980 of 2005, who are writ petitioners in W.P.No.25371 of 2002, contend that when they wanted to put up their construction in the area sold to them, they were informed by the third respondent, namely, Coimbatore City Municipal Corporation, that no permission could be granted to put up construction, unless the lands in question were de-reserved. On coming to know about certain orders passed on de-reservation in respect of certain other lands situated in Sowripalayam, Coimbatore as well as elsewhere, the petitioners made an application on 6.8.2001 to the first respondent, namely, the Government of Tamil Nadu, represented by its Secretary to Government, Municipal Administration & Water Supply, through the Town and Country Planning Department as well as the Coimbatore City Municipal Corporation for de-reserving the area. The third respondent, in his proceedings dated 5.12.2001, pointed out that while sanctioning the layout, certain lands were reserved for roads and public purposes and the roads had been handed over to the Corporation and maintained by the Coimbatore Corporation. Further, the Corporation had gone ahead with passing a Resolution on 7.11.1995 in Resolution No.2369 that the site was reserved for public purpose as land belonging to the Corporation.
8. The purchasers/respondents-4 to 6 contend that the Corporation had no authority to pass such a resolution under the Act. In the meantime, by proceedings dated 26.6.2002, the first respondent rejected the prayer for de-reservation, since the Coimbatore Municipal Corporation had passed a resolution declaring the lands as reserved for public purpose and the lands as belonging to the Corporation. Respondents-4 to 6 contend that the resolution passed is in excess of the jurisdiction of the third respondent Corporation and Section 432(10)(b) of the Coimbatore City Municipal Corporation Act does not vest any such jurisdiction to take any land. They further submit that since the Corporation cannot claim ownership of a private land except in a manner known to law, the resolution has to be quashed.
9. On notice, the respondents in the respective writ petitions have filed counter affidavit.
10. The first respondent, in its counter affidavit, stated that respondents-4 to 6 made a representation through their Power Agent as to the purchase of the land comprised in the approved layout and when the Government rejected the plea that the purchases were from the reserved area for public purpose, the said respondents presented a petition for re-consideration of the request for converting the lands earmarked for public purpose into house sites agreeing to withdraw the Writ Petition filed in W.P.No.25371 of 2002.
11. Taking into consideration the representation of respondents- 4 to 6 and on an undertaking from the respondents that they would withdraw the Writ Petition, after obtaining the opinion of the Government Pleader, High Court, Madras, the Government passed G.O.Ms.No.80, Municipal Administration and Water Supply Department dated 15.02.2005. They deny the allegation that the Government Order is passed without application of mind. The first respondent states that the order had been passed in exercise of the powers conferred on the first respondent.
12. The third respondent, Coimbatore City Municipal Corporation, in their counter affidavit, pointed out that the area in question is a reserved area for public purpose and the same was not handed over to the Corporation as per the sanctioned layout proceedings. Hence, by Resolution No.2369 dated 27.11.1995, the Corporation declared the said area as a reserved area and possession was taken over by the Corporation. The said resolution was also sent for notification in the District Gazette, which, however, due to administrative difficulties, was not followed. However, ignoring the reservation, respondents-4 to 6 took steps to put up construction. Proceedings were taken by the third respondent to stall the construction and ultimately demolition notice was issued under Section 296(3) of the Act.
13. Challenging the same, respondents-4 to 6 approached this Court in W.P.No.14327 of 1995. However, by order dated 2.8.2002, this Court dismissed the Writ Petition. A Writ Appeal was preferred by respondents-4 to 6 in Writ Appeal No.79 of 2003 and the same was dismissed for default on 03.04.2008.
14. As far as respondents 4 to 6/writ petitioners in W.P.No. 25371 of 2002 are concerned, they defended their claim based on G.O.Ms.No.80 dated 15.2.2005 that the powers to de-reserve the lands have been exercised properly after considering all the aspects.
15. Mr.K.M.Vijayan, learned senior counsel appearing for the purchasers/respondents 4 to 6/petitioners in W.P.No.25371 of 2002, submitted that with the passing of the Government Order in favour of respondents-4 to 6/writ petitioners in W.P.No.25371 of 2002, technically the resolution of the third respondent herein does not survive any longer, and hence the writ petition filed by these respondents have to be allowed. However, considering the writ petition of the Association, the claim of the respondents in W.P.No.25371 of 2002 merited to be considered. He pointed out that considering Sections 36 and 37 of the Tamil Nadu Town and Country Planning Act, 1971, any land required, reserved or designated for public purpose shall be deemed to be the land reserved for public purpose within the meaning of the Land Acquisition Act. Unless the authorities adopt the procedure under the Land Acquisition Act, the question of any land considered as transferred to the Corporation as for public purpose does not arise. He submitted that even in the case of approval of the layout, the third respondent has to follow the procedure laid down under Sections 36 and 37 of the Tamil Nadu Town and Country Planning Act, 1971. He further pointed out that as per Sub Section (2) of Section 37 of the Act, a declaration under Section 6 of the Land Acquisition Act covered by the notice under Sections 26 and 27 of the Town and Country Planning Act has to be made within a period of 3 years from the date of such notice. Under Section 38 of the Tamil Nadu Town and Country Planning Act, 1971, if no declaration is published within the time limit of three years in respect of the land reserved, allotted or designated for any purpose specified in the regional plan, master plan, detailed development plan or new town development plan, such land shall be deemed to be released from such reservation, allotment or designation. He placed reliance on the decision of the Apex Court reported in (1995) 1 SCC 47 (PT.Chet Ram Vashist Vs Municipal Corporation of Delhi) that the reservation of a land for any public purpose leading to deprivation of a right or interest in any land by the State requires that the State has to observe the rule of law. In the absence of observance of the due process of law, the resolution of the third respondent, to insist on the owner to hand over the reserved land to the Coimbatore City Municipal Corporation under a gift deed, is illegal and is in excess of its jurisdiction. Pointing out to the provisions of Section 432(10)(b) of the Coimbatore City Municipal Corporation Act, learned senior counsel contended that the provisions of the Act do not empower the third respondent to declare the private land as the property of the Coimbatore City Municipal Corporation Act. Consequently, no order could be passed to deprive the rights of the petitioner to the land in question. Learned senior counsel further referred to the decision reported in AIR 1995 SC 430 (PT.Chet Ram Vashist Vs Municipal Corporation of Delhi) that while approving the layout, imposition of a condition that a particular area of the land shall be reserved for public purpose and be donated to the local body is illegal. He made specific reference to the decision reported in (2005) 11 SCC 222 (Raju S. Jethmalani and Ors.Vs. State of Maharashtra and Ors.) that when the Corporation had failed to acquire the land within the time frame prescribed under Section 38 of the Act, the purpose thus no longer there, the petitioner could not be deprived of the use of the land for residential purpose. Contending that a citizen cannot be deprived of his rights to his property when the State had not followed the procedure laid down under the Tamil Nadu Town and Country Planning Act, he placed reliance on the decision reported in (2005) 5 SCC 61 (Bombay Dyeing and Manufacturing Co. Ltd. Vs. Bombay Environmental Action Group and Ors.). Learned senior counsel also referred to the decision reported in (2009) 7 MLJ 653 (Bagyam V. Commr., Coimbatore City Municipal Corpn.) as well as (2007) 3 MLJ 647 (Casa Grande Private Limited, rep. by its Director M. Arun Kumar Vs. Chennai Metropolitan Development Authority (CMDA), rep. by its Member Secretary) that when the statutory procedures are not followed, the resolution is contrary to the Tamil Nadu Town and Country Planning Act and the Development Control Rules.
16. Per contra Mr.G.Rajagopalan, learned senior counsel appearing for the Association/petitioners in W.P.No.23980 of 2005, challenging the order of the Government on re-classification, pointed out that the impugned order had been made by way of review of the earlier order rejecting the land owner's plea for re-classification. Once the layout has been sanctioned subject to certain conditions, particularly with reference to reserving an extent of land for public purpose, the Government has no authority to re-classify the land, thereby, releasing it from the original purpose. He referred to the decision reported in (2002) 3 MLJ 375 Villupuram Municipality, rep. by its Commissioner, Villupuram Vs. M. Subramanian and others) as well as 2007-3-L.W.259 (Sri Devi Nagar Residences Welfare Association V. Subbathal) that an area reserved for a public purpose cannot be undone by the Government under the provisions of the Act. He also referred to the decision reported in (2007) 4 MLJ 1006 (Karpaga Nagar Nala Urimai Sangam Vs. Municipal Administration and Water Supply Department) wherein, dealing with the scope of the Tamil Nadu Town and Country Planning Act and the Corporation Act, this Court held that the Tamil Nadu Town and Country Planning Act and the Corporation Act have to be read together and not in derogation of each other that while the Corporation Act provides for the obligations of the owners to provide sites reserving the same as common for the purpose of the Tamil Nadu Town and Country Planning Act, on a mere non-compliance of the provisions of Section 26, 27 and 38 of the Tamil Nadu Town and Country Planning Act, there is no release of the particular area reserved as one for public purpose. He pointed out that the need to maintain the reserved plots as per the layout approval order is not a mere formality. He pointed out to G.O.Ms.No.170 dated 1.12.2000 which gives a specific direction that an area reserved for public purpose would not go for sale to be registered for private individuals. In the context of the approval to the layout granted, the resolutions as to the user of the land is a permanent one and cannot be changed vide (2006) 1 MLJ 181 (The Chairman, Madras Metropolitan Development Authority Vs. S. Radhakrishnan and Ors.). In any event, once an approval of the layout has been granted subject to reserving the area as for public purpose and the owner had also reserved the same and rightly the petition preferred by the purchasers/respondents 4 to 6 was rejected, there cannot be a further review of the same. He pointed out that Section 81 of the Tamil Nadu Town and Country Planning Act provides for a review of an order passed under Sections 76 to 78 and 80 of the Tamil Nadu Town and Country Planning Act. The order passed by the Government being one under Section 79 of the Tamil Nadu Town and Country Planning Act is not amenable to the review provisions. Referring to Section 48 of the Tamil Nadu Town and Country Planning Act, learned senior counsel submitted that respondents-4 to 6 do not have any authority to deal with the reserved area and no person other than the State Government or the Central Government or a local authority shall erect a building in or over any land or make any material change in the use of the land or construct, except with the written permission of the appropriate authority. In the background of the said provisions and the facts, learned senior counsel pointed out that while granting the layout, once a land is reserved for a public purpose and the purchasers of the layout plots have been assured of the reservation, the respondents are estopped from making any material change in the sanctioned scheme of the layout and the same is legally binding on the respondents. The Corporation as well as the respondents have to maintain the land reserved for public purpose under trust for the other owners of the laid out plots. Consequently, any change in the character of the land reserved for public purpose would amount to violation of the contractual terms. In the above circumstances, the order passed by the Government in G.O.Ms.No.80 dated 15.2.2005, unilaterally changing the purpose, is in violation of the conditions of purchase; hence liable to be quashed. He pointed out that the purchase by respondents-4 to 6 are not valid in law. Having regard to the sanctioned layout, they are bound to return the land reserved for public purpose as a trustee of the property, the land being common to all the land owners for their enjoyment.
17. The Corporation, the third respondent herein, has filed a counter affidavit, wherein, it is pointed out that the area reserved for public purpose was purchased by five persons including respondents-4 to 6. Of the 5 persons, two persons by name S.K.Venkatachalam and V.Meenakshi (6th respondent) started construction without even submitting their building application under Section 272 of the Coimbatore City Municipal Corporation Act. When they were proceeded with a notice to stop construction, the same was ignored. The demolition notice was issued under Section 296(3) by the Coimbatore City Municipal Corporation Act. Challenging the same, a writ petition was filed in W.P.No.14327 of 1995. By judgment dated 02.08.2002, this Court dismissed the writ petition upholding the stand of the respondent-Corporation to demolish the unauthorised construction. As against the said order, a writ appeal was filed in W.A.No.79 of 2003 and the same was dismissed for default on 03.04.2008. Three persons, namely respondents-4 to 6, who had not originally filed any writ petition, later on filed writ petition in W.P.No.25371 of 2002, challenging the resolution No.2369 dated 27.11.1995. The Corporation pointed out that these respondents' request for re-classification was originally rejected under G.O.Ms.No.231 dated 26.6.2002. On the review of the same, the Welfare Association has preferred writ petition in W.P.No.23980 of 2005.
18. Learned counsel appearing for the Coimbatore Corporation pointed out that once the area has been reserved for common purpose while sanctioning the layout plan, Section 250(2) of the Coimbatore City Municipal Corporation Act alone will have relevance for consideration. Consequently, no exception could be taken to the resolution of the Corporation.
19. Learned Special Government Pleader appearing for the first respondent in W.P.No.23980 of 2005, reiterating the contentions in the counter affidavit, defended the review order of the Government that even though the resolution of the third respondent dated 27.11.1995 is not published in the Gazette, yet, the sanction of the layout cannot be denied. She pointed out that the petitioner in W.P.No.25371 of 2002, the original owner, is a defaulter in not handing over the land to the Corporation within six months, as had been ordered in the sanctioned layout order. She pointed out to G.O.Ms.No.231 dated 21.6.2002 and to the District Gazette as well as the TSLR Register that the land in question is described as "bghJ ,lk;". She referred to the decision reported in (2007) 3 MLJ 990 (Sri Devi Nagar Residences Welfare Association Vs. Subbathal and others) that the land once reserved for public purpose cannot be changed. Yet, considering the subsequent Government Order passed, based on the Government Pleader's opinion, the request of respondents-4 to 6 were considered.
20. Countering the arguments made by the petitioner, Mr.K.M.Vijayan, learned senior counsel appearing for respondents-4 to 6, pointed out to the counter affidavit filed by the Government that admittedly there was no vesting of the land reserved for a common purpose. He reiterated that there cannot be a gift of a land reserved for a public purpose other than for roads. Even then, an executive direction to deprive a person of his right to property is contrary to Article 300-A of the Constitution of India. The source of power for an approval remaining with the Tamil Nadu Town and Country Planning authorities, the local bodies do not have the authority at all to insist on any land to be reserved and that too, to be given by way of a gift deed. Pointing out to the provisions of the Act, particularly Sections 11, 15, 30 and 38, he submitted that the decision reported in (2009) 7 MLJ 653 (Bagyam V. Commr., Coimbatore City Municipal Corpn.), and (2007) 4 MLJ 1006 (Karpaga Nagar Nala Urimai Sangam Vs. Municipal Administration and Water Supply Department) have not considered the effect of Sections 36 and 38 of the Tamil Nadu Town and Country Planning Act and hence cannot be considered as having any relevance to the case on hand. In the face of the decisions of the Apex Court reported in (1995) 1 SCC 47 (PT.Chet Ram Vashist Vs Municipal Corporation of Delhi), (2005) 11 SCC 222 (Raju S. Jethmalani and Ors.Vs. State of Maharashtra and Ors.) and (2005) 5 SCC 61 )Bombay Dyeing and Manufacturing Co. Ltd. Vs. Bombay Environmental Action Group and Ors.), unless and until the reservation has ultimately culminated in a proceedings under the Land Acquisition Act as prescribed under Sections 37 and 38 of the Tamil Nadu Town and Country Planning Act, the character of the land in question is amenable for re-classification. Consequently, he submitted that no exception could be taken to the Government Order passed; and the resolution of the Corporation, hence, has to be struck down by this Court.
21. Going by the decisions of the Apex Court as to the rights of the Corporation and the scheme of the sanction, I hold that the petitioners' Association is entitled to succeed in their writ petition and the respondents' writ petition has to be dismissed.
22. The Tamil Nadu Town and Country Planning Act, 1971 seeks to secure to its present and future inhabitants, a well planned development of the towns so as to serve sanitary condition, amenity and convenience. Section 4 of the Tamil Nadu Town and Country Planning Act specifies various classes of the Town and Country Planning Authorities for the purpose of the Act as (a) Regional Planning Authority (b) Local Planning Authority and (c) New Town Development Authority. Section 11 deals with the constitution of the Town and Country Planning Authority. Section 6 deals with the functions and powers of the Town and Country Planning Board, viz., to direct preparation of development plans by planning authorities. Section 2(13) defines "development" to mean carrying out all or any of the works contemplated in a regional plan, master plan, detailed development plan or a new town development plan and shall include carrying out building, engineering, mining or other operations in or over or under the land or making of any material changes in the use of any building or land. Proviso to Section 2(13) specifies operation or use of land, which shall not be deemed to involve development of land.
23. "Development plan" is defined under Section 2(15) to mean Plan for development or re-development of the area within the jurisdiction of the planning authority and includes a regional plan, master plan, detailed development plan and a new town development plan prepared under the Act. Section 15 deals with drawing up of plan for the regional planning area. Sub Section (2) to Section 15 deals with matters in respect of which, provision has to be made while drawing the regional plan.
24. Section 17 deals with master plan for the local planning area. Sub Section (2) to Section 17 deals with matters to be considered while proposing the master plan. Section 19 states that the local planning authorities may decide by resolution (a) to prepare a development plan called detailed development plan in respect of any land within its planning area or (b) to adopt with or without modification, a detailed development plan proposed by all or any of the owners of any such land. Sub Section (2) to Section 19 directs the publication of the resolution by the local planning authority in the District Gazette.
25. Section 21 deals with preparation and submission of the detailed development plan by the local planning authority to the Director. Section 23 deals with powers of the Director to require local planning authority to prepare a detailed development plan in respect of any area.
26. The detailed development plan drawn goes for approval under Section 29. Section 33 deals with variation and revocation of detailed development plan.
27. Section 20 details the contents of detailed development plan which reads as follows:
" Contents of detailed development plan.-- (1) A detailed development plan may propose or provide for all or any of the following matters, namely:--
(a) the laying out or relaying out of land, either vacant or already built upon, as building sites;
(b) the construction, diversion, extension, alteration, improvement or closure of lanes, streets, roads and communications;
(c) the construction, alteration, removal or demolition of buildings, bridges and other structures;
(d) the acquisition by purchase, exchange or otherwise of any land or other immovable property within the area included in the detailed development plan whether required immediately or not;
(e) the redistribution of boundaries and the reconstitution of plots belonging to owners of property;
(f) the dispusal by sale, exchange, lease or otherwise of land acquired or owned by the local planning authority;
(g) transport facilities;
(h) water-supply;
(i) lighting;
(j) drainage, inclusive of sewage and of surface draining and sewage disposal;
(k) the allotment or reservation of land for streets, roads, squares, houses, buildings for religious and charitable purposes, open spaces, gardens, recreation grounds, schools, markets, shops, factories, hospitals, dispensaries, public buildings and public purposes of all kinds and defining and demarcating of, the reconstituted plots or the areas allotted to or reserved for, the above mentioned purposes;
(l) the construction of buildings generally and housing or rehousing of persons displaced by the detailed development plan;
(m) the demarcation of places or objects and buildings of archaeological or historical interest or natural scenic beauty or actually used for religious purposes or regarded by the public with veneration, or the protection of canal, tank or river sides, coastal areas and other places of natural or landscape beauty;
(n) the imposition of conditions and restrictions in regard to the character, density, architectural features and height of buildings, the buildings or control lines for roads, railway lines and power supply lines and the purposes to which buildings or specified areas may or may not be appropriated and the provision and maintenance of sufficient open spaces about buildings;
(o) the advance to the owners of land or buildings comprised within the detailed development plan upon such terms and conditions as may be provided by the said plan, of the whole or part of the amount required for the erection of buildings or for carrying out the works, alterations or improvements in accordance with the detailed development plan; and
(p) such other matters as may be prescribed.
28. Sub Section (2) to Section 20 states that every detailed development plan shall contain particulars regarding (a) the plan showing the lines of existing and proposed streets; (b) the ownership of all lands and buildings in the area covered by the plan; (c) the area of all such lands, whether public or private; (d) the full description of all details of the plan; (e) the description of all lands either acquired or to be acquired for matters mentioned in sub-section (1); (f) the particulars regarding the number and nature of houses to be provided by the local planning authority in cases where the detailed development plan provides for any housing or rehousing, the approximate extent of land to be acquired, the details of the land to be acquired and all matters supplemental, incidental or consequential to such housing or rehousing; and (g) the zoning regulations and regulations for enforcing or carrying out the provisions of the plan.
29. Section 2(34) defines "public open space" as any land whether enclosed or not belonging to the Central or any State Government or any local authority or any body corporate, owned or controlled by the Central or any State Government on which there is no building or of which not more than one-twentieth part is covered with buildings, and the whole or the remainder of which is used for purpose of recreation, air or light.
30. Section 2(35) defines "public space" meaning a place including a road, street, or way, whether a thoroughfare or not, and a landing place to which the public are granted access or have a right to resort or over which they have a right to pass. Section 2(36) defines "public purpose" to mean any purpose which is useful to the public or any class or section of the public.
31. Section 49 of the Act contemplates filing of applications by any person intending to carry out development on any land on or after the date of publication of the resolution under Section 19(2) or the notice under Section 26. As per sub-section (2) to Section 49, the appropriate planning authority shall take into consideration (a) the purpose for which permission is required (b) suitability of the place for such purpose (c) the future development and maintenance of the planning area while granting or refusing such permission.
32. Chapter IV -Sections 36 to 39, deals with acquisition of land and disposal of land required for regional plan, master plan, detailed development plan or a new town development plan and payment of compensation to the land holders. As per Section 36, the land required for the above purpose shall be deemed to be the land needed for a public purpose within the meaning of the Land Acquisition Act, 1894. The said land can be acquired under the Land Acquisition Act subject to the provisions under Sections 37, 38 and 39 of the Tamil Nadu Town and Country Planning Act. Section 37 states that where, after publication of the notice of preparation of regional plan, master plan, detailed development plan or a new town development plan, any land is required, reserved or designated in such plan, the appropriate planning authority may, either enter into agreement with any person for the acquisition from him by purchase of any land which may be acquired under Section 36 or make an application to the Government for acquiring such land under the Land Acquisition Act. The proviso stipulates that where the value of the land exceeds Rs.50,000/-, the appropriate planning authority has to seek the approval of the Government before entering into any agreement. Proviso to Sub Section (2) states that the declaration in respect of a particular land covered under Section 26 and 27 of the Tamil Nadu Town and Country Planning Act has to be made within three years from the date of such notice.
33. G.O.Ms.No.632 Rural Development and Local Administration dated 8th April 1975 deals with "Preparation and Sanction of Detailed Development Plan Rules."
34. Rule 5 deals with the contents of detailed development plan. It states "every draft detailed development plan shall contain particulars which are in addition to the particulars specified in Section 20." Rule 9 deals with the statements to be prepared. Sub Rule (d) provides for a statement in Form No.7 showing the lands proposed to be reserved under Clause (k) of Section 20.
35. Section 38 stipulates that where the publication of the notice under Section 26 or 27 as required under Section 37 is not made within the three year time limit stipulated or when the land is not acquired by agreement, such land shall be deemed to be released from such reservation, allotment or designation.
36. Touching on the scope of Sections 36 to 39, in the decision rendered on 06.09.2007 in W.A.No.749 of 2007, a Division Bench of this Court, held "From the aforesaid provision, it will be evident that lands which are deemed to be land for public purpose can only be acquired u/s 36, which includes lands "reserved under the master plan or detailed development plan" or "lands designated under master plan or detailed development plan". Apart from such reserved or designated land, shown in the master plan or detailed development plan, no other land can be acquired in exercise of power conferred u/s 36."
37. While considering the question as to whether a portion of the land reserved for public purpose in a layout approved by local body can be used for any other purpose, in the decision reported reported in (2007) 3 MLJ 990 (Sri Devi Nagar Residences Welfare Association Vs. Subbathal and others), this Court held that the object of approving the layout before converting the land into house sites is to regulate the development in the locality so as to secure the present and future inhabitants, sanitary conditions, amenity and convenience. This Court further pointed out "one of the most important things for consideration in the preparation of the layout is not only formation of roads, but also utilisation of the lands reserved for public purpose." It pointed out, "broadly speaking, public purpose means the general interest of the community, as opposed to the interest of an individual' that as successive areas are developed, they fit into one another and eventually form a harmonious whole. In the decision reported in (1995) 1 SCC 47 (Pt. Chet Ram Vashist (Dead) by Lrs. Vs. Municipal Corporation of Delhi), the Apex Court pointed out "Reserving any site for any street, open space, park, school etc. in a lay-out 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." The Apex Court pointed out to the distinction between ownership and management of the public places reserved. In the above-said decision, the Supreme Court considered the question with reference to the Delhi Municipal Corporation Act. The brief facts are one Amin Chand applied for the sanction of the layout plan of the colony to the Delhi Development Authority. The plan proposed division of colony into 98 residential plots and 7 shop plots. Some open space was reserved for children park. Water supply to the colony was proposed to be supplied by the tubewells installed in two plots till the municipal supply of water reached the colony. With municipal supply granted, there was no necessity to install the tubewells. The owner Amin Chand applied to the Corporation for removing the restriction on the building activities in the colony. The Special Committee passed a resolution that building activity shall be allowed subject to the condition that the open spaces reserved for park and school were transferred to the Corporation free of cost. The owner filed a suit for declaration and mandatory injunction, which was however dismissed, holding that the reservation of the two plots for open park was valid; however, the resolution to transfer the plots free of cost was invalid. On appeal against this by the Corporation, the appellate Court dismissed the same, thereby confirmed the trial Court decision. On second appeal, the High Court held that the resolution of the Committee did not amount to transfer of ownership and it was only a transfer of right of management. On further appeal, referring to Section 313(3) of the Delhi Municipal Corporation Act that the Standing Committee shall accord sanction to the layout plan in "such condition" as it thinks fit, the Apex Court pointed out:
" The expression, 'such conditions' has to be understood so as to advance the objective of the provision and the purpose for which it has been enacted. ... But the power cannot be construed to mean that the Corporation in the exercise of placing restrictions or imposing conditions before sanctioning a lay-out plan can also claim that it shall be sanctioned only if the owner surrenders a portion of the land and transfers it in favour of the Corporation free of cost. That would be contrary to the language used in the Section and violative of civil rights which vests in every owner to hold his land and transfer it in accordance with law. "
38. The Apex Court pointed out that Section 313 empowering the Commissioner to sanction a layout plan does not contemplate vesting of the land earmarked for a public purpose in the Corporation or to be transferred to it. The requirement of an owner to reserve any site for any street, open space, park, recreation ground, school, market or any other public purpose does not mean that by a mere reason of a reservation, the open space or park so earmarked shall vest in the Corporation or stand transferred to it. Referring to Sub-section (5), the Apex Court held that the Section imposes a bar on the execution of power by the owner in respect of the land covered by the layout plan, except in conformity with the order of the Standing Committee. The Apex Court held "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."
39. The proprietary right and interest left in the owner is a residuary interest, which is no more than the right to hold the land in trust for specific purpose specified by the coloniser on the sanctioned layout plan, by virtue of the land specified as open space. The Corporation gets 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 local body is not the same thing as to claim transfer of property to itself." The Apex Court modified the decision of the High Court as follows:
"(1) The Corporation shall have right to manage the land which was earmarked for school, park etc. (2) The Corporation shall not have any right to change the user of land which shall be for beneficial enjoyment of the residents of the colony.
(3) It is left open to the Corporation to get the land transferred in its favour after paying the market price as prevalent on the date when the sanction to the lay-out plan was accorded."
40. The decision reported in (2005) 11 SCC 222 (Raju S. Jethmalani and Ors.Vs. State of Maharashtra and Ors.) is on the de-reservation of an area which was originally reserved as a park and for the purpose of garden in the development plan prepared in the year 1986 for Pune city under Section 26(1) of the Maharashtra Regional and Town Planning Act, 1966. The original owner of the plot did not object to the reservation. However, the lands were sold. The subsequent purchasers sought for de-reservation of the plot. The Government de-reserved the plot. This was challenged by way of a public interest litigation that once the land is earmarked for a particular purpose to promote environmental exigencies, the same cannot be de-reserved to defeat the public purpose. Distinguishing the decision reported in (1991) 4 SCC 54 (Bangalore Medical Trust v. B.S.Muddappa and Ors.) that the Bangalore Development Authority Act is not in pari materia with that of the provisions of the Maharashtra Regional and Town Planning Act, 1966 and that there is complete prohibition for the authorities for selling or otherwise disposing the area reserved for public purpose, the Apex Court pointed out that the Bangalore Development Authority had unilaterally used the space reserved for public park as a hospital, but without calling for any objection. However, when the Pune administration had not taken steps for acquiring the land for developing the reserved area as a garden and the Government de-reserved the same after hearing objection and the Corporation did not need the same, the de-reservation could not be faulted with.
41. Learned senior counsel appearing for respondents-4 to 6 pointed out to the observation of the Apex Court that there cannot be a deprivation of a person of his use of the land without acquiring the land. While there is no prohibition for preparing a development plan comprising of private land, yet, that plan cannot be implemented unless the private land is acquired by the Government for development purpose.
42. As already seen, Section 20 of the Tamil Nadu Town and Country Planning Act deals with the contents of the detailed development plan providing for matters specified in sub Section 1(a) to (p). Sub clause (k) deals with allotment or reservation of land for streets, roads, squares, houses, buildings for religious and charitable purposes, open spaces, gardens, recreation grounds, schools, markets, shops, factories, hospitals, dispensaries, public buildings and public purposes of all kinds and defining and demarcating of, the reconstituted plots or the areas allotted to or reserved for, the above mentioned purposes. Section 33 provides for variation and revocation of detailed development plan approved under the Act.
43. Chapter X of the Coimbatore City Municipal Corporation Act deals with building regulations General powers. Section 268(1) of the Coimbatore City Municipal Corporation Act provides that the Government may make rules for the regulation or restriction of the use for development of sites for building.
44. Thus going by the provisions of Section 20(1)(k), 20(2)(e) and (f), which provides for allotment or reservation of land for public purpose of all kinds, that every detailed development plan has to contain the development of lands either acquired or to be acquired for matters mentioned in sub-section(1) as well as under Section 47 of the Tamil Nadu Town and Country Planning Act, the provisions of Chapter IV relating to acquisition and disposal of land has to be seen as having reference to those lands reserved for acquisition as provided under the above said provisions.
45. The decision of the Apex Court reported in (1995) 1 SCC 47 (PT.Chet Ram Vashist Vs Municipal Corporation of Delhi) has a direct bearing to the case pleaded by the petitioner herein and is not of any assistance to the submissions of learned senior counsel for respondents-4 to 6. The decision reported in (2005) 11 SCC 222 (Raju S. Jethmalani and Ors.Vs. State of Maharashtra and Ors.) is distinguishable both by reason of facts as well as by provision of the Act.
46. Thus guided by the decision reported in (1995) 1 SCC 47 (PT.Chet Ram Vashist Vs Municipal Corporation of Delhi), I hold that the contentions of Mr.K.M.Vijayan, learned senior counsel, as to the relevancy of Sections 36 to 38 of the Act have no relevance and the question of limitation, hence, does not arise.
47. I am also constrained to hold that once the land is reserved for public purpose, the Corporation gets a right as a custodian only to manage the same. The reservation however, does not, by itself, confer any right or title or interest thereof in the Corporation. As pointed out in the decision reported in (1995) 1 SCC 47 (PT.Chet Ram Vashist Vs Municipal Corporation of Delhi), public interest cannot be stretched to create a right in the Corporation beyond the status of a trustee or a custodian to manage the property for the public purpose. In the above-said circumstances, the Government cannot change the character of the reservation and is, in fact, estopped from de-reserving the same to the benefit of the individual/owner who sought for a sanction of the layout. The reservation of land being part of the layout sanctioned, the petitioners, who had gone for the purchase of the reserved plots under the sanctioned scheme, which assures open space, are entitled to the enjoyment of the lung space reserved as every other member of the public.
48. Being beneficiaries of the sanctioned layout scheme and the Association Members having fiduciary interest in the preservation and maintenance of the layout scheme, there are no compelling reasons of public nature indicated in the Government Order to go for de-reservation of the area reserved for public interest. As a custodian, the first respondent has the statutory obligation along with the owner of the lands who sought for sanction of the layout scheme and other purchasers of the layout to see that the reservation, in fact, serves the purpose and is not defeated at the cost of gain by a few.
49. I agree with the reliance placed by the learned senior counsel appearing for the petitioner on the decision of this Court reported in (2007) 4 MLJ 1006 (Karpaga Nagar Nala Urimai Sangam Vs. Municipal Administration and Water Supply Department). Dealing with the scope of the Tamil Nadu Town and Country Planning Act, 1971 and Section 250 of the Madurai City Municipal Corporation Act, this Court pointed out that the provisions of both the Acts are to be read together and not in derogation of each other. This Court pointed out that Section 250 of the Madurai City Municipal Corporation Act is a specific provision relating to a particular contingency and required to be given effect to. Once the land is dedicated for common use, after acceptance of the plan by the appropriate authority, the dedication continues for the common use.
50. Referring to Section 49 of the Tamil Nadu Town and Country Planning Act, Mr.G.Rajagopalan, learned senior counsel appearing for the petitioner, also referred to the decision reported in (2002) 3 MLJ 375 Villupuram Municipality, rep. by its Commissioner, Villupuram Vs. M. Subramanian and others), wherein it was held that "when the conditions are imposed for sanction of the layout, the compliance of such condition is mandatory and is not for the time being to satisfy the requirement of the sanction. When that be so any condition imposed for the sanction of the layout must strictly be complied with." This Court further pointed out that "the provision do not relate to the right of the land owner alone. When once the place is earmarked for the common use, the land owner loses his individual right over the same and he is supposed to hold the same for the benefit of the purchasers of the plots under the sanctioned layout obtained by him."
51. This Court referred to a decision reported in 2001-3-L.W.828 (Krishna Nagar Residents Welfare Assocation V. The Director of Town and Country Planning), wherein under similar circumstances, when the original owner went for layout sanction and approached the authorities for de-reservation of the area reserved for public purpose and the authorities granted the same, this Court held that when an area is reserved for common use, it shall continue to remain only as for public purpose and for the benefit of the entire colony. "The very layout 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 for 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 the property to be converted to her own use. Otherwise, there is no purpose in submitting a layout plan and the Government sanctioning the layout plan subject to the requirements being satisfied." Therefore, the attempt on the part of the fourth respondent to assert his title and rights over the property to utilise the same in any manner and that the petitioner continued to be in possession cannot entitle the owner to convert the use as against the purpose for which the layout plan was sanctioned. Referring to a decision reported in (1995) 1 SCC 47 (PT.Chet Ram Vashist Vs Municipal Corporation of Delhi), this Court held that the owner would be holding it only for the benefit of the residents.
52. Section 49 of the Act deals with the filing of application for sanction of layout. Section 49(2) enjoins on the appropriate planning authority to have regard to the purpose for which the permission is required, the future development and maintenance of the planning area and the suitability of the place for such purpose.
53. In the background of the law thus declared, the contention of the learned senior counsel appearing for respondents-4 to 6 that reservation has to reach a stage like a decree in terms of Section 37 of the Act by following the Land Acquisition Act, lest the provisions of Section 38 of the Act would operate, has to be rejected as unsustainable in law.
54. Learned senior counsel appearing for the 4th to 6th respondents contended that by executive direction, the Corporation cannot declare or acquire the land and Section 432(10) of the Coimbatore City Municipal Corporation Act does not apply.
55. Section 432 of the Coimbatore City Municipal Corporation Act deals with the power of the council to make bye-laws. Section 432(10) of the said Act is concerned about laying out of streets and for maintenance of the same for protection of avenues, trees and other appurtenances of public streets and other places.
56. Section 432(11) is for "regulation of the use of parks, gardens and other public or municipal places but not including the regulation of traffic therein, the reservation thereof for particular kinds of traffic, or the closing thereof or parts thereof to traffic."
57. In the resolution passed on 7.11.1995, the Corporation passed the resolution that the owners have not handed over to the Corporation the extent of 20,973 sq.ft. reserved for public purpose (park and well); that at the time of sanctioning the layout, the owners were directed to develop the reserved area and hand over it to the Corporation; that having regard to the violation of this condition, in terms of Section 432(10)(b) of the Act, the said area was declared as "being given up" to the Corporation. By letter dated 6.8.2001, respondents-4 to 6 addressed a letter to the Municipal Administration stating that without knowing the reservation, they had purchased the lands. It is further stated therein that out of the total reserved area for well and park, respondents-4 to 6 had purchased 31 cents and 195 sq.ft. with the approach road of 23 feet of an extent of 5 cents and 52 sq.ft. and the rest of the area for the temple. Hence, they prayed to sub-divide the property. The Joint Commissioner of Coimbatore Corporation, however, intimated in the letter dated 05.12.2001 rejecting the request that the sale had violated the provisions of the Corporation Act and the layout sanction. The Director, Town Planning, informed the Secretary, Coimbatore Planning Committee, to take action to hand over the reserved area to the Corporation and that the prayer of the purchaser for de-reservation as house sites could not be granted. By petition dated 17.1.2002, respondents-4 to 6 informed that the Corporation had not developed the reserved site and that the respondents intended to develop the reserved area for constructing the temple complex as well as residential buildings and hence prayed for according permission for sub-division of the site.
58. The Planning Committee addressed a letter dated 23.1.2002 to the Town Planning Commissioner, Chennai, that as the respondents had not handed over the site reserved as per Section 432(10)(b) of the Coimbatore City Municipal Corporation Act, by Resolution No.2369 dated 07.11.1995, the Corporation declared the reserved site as belonging to the Corporation. The Town Planning Director addressed a letter dated 14.2.2002 rejecting the request of respondents-4 to 6 on the above-said facts. Once again, by letter dated 08.03.2002, the fourth respondent addressed to the Commissioner, Coimbatore Corporation and Joint Commissioner, Coimbatore Corporation, that even prior to the resolution, respondents-4 to 6 had purchased the land and constructed their houses. This was repeated again in the letter dated 11.5.2002 that house tax had also been collected from respondents-4 to 6. By G.O.No.231 dated 26.6.2002, the first respondent rejected the prayer of respondents-4 to 6 to de-reserve the land into house sites. However, by G.O.No.80 dated 15.2.2005, the Government reviewed G.O.No.231 dated 26.6.2002 by referring to W.P.No.25371 of 2002 (now before this Court). The Government pointed out to the opinion taken from the Government Pleader and the order passed under similar circumstances de-reserving the lands sanctioned in matters relating to Coimbatore, Sowripalayam, Uppilipalayam and Madurai Journalists' Association and that on respondents-4 to 6 undertaking to withdraw W.P.No.25371 of 2002, the extent of 3406 sq.ft., 3200 sq.ft. and 4250 sq.ft purchased by respondents-4 to 6 be de-reserved from the reservation as for public purpose and accordingly directed the Coimbatore Town Planning Committee and Coimbatore Corporation to take action in this regard that the de-reserved extent be declared as house sites and to make necessary entries in the records.
59. As already pointed out in the preceding paragraphs, once while granting the layout a particular area is reserved for public purpose and the owners have acted so, it is obligatory on the part of the land owner to respect it so and it is not open to the land owner or his successors in interest in any manner to give a go bye to the conditions under which the layout was sanctioned. Hence, the land owners have no right to deal with it as he pleases and the land reserved as for public purpose would continue to remain so and no individual, including respondents- 4 to 6, can claim ownership over the property.
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.
61. The decision of the Apex Court reported in (1995) 1 SCC 47 (PT.Chet Ram Vashist Vs Municipal Corporation of Delhi) supports the case of the petitioner. In the circumstances, I do not find any ground for accepting the plea of respondents=4 to 6 as to the relevancy of the decisions reported in (2009) 7 MLJ 653 (Bagyam V. Commr., Coimbatore City Municipal Corpn.) and (2007) 4 MLJ 1006 (Karpaga Nagar Nala Urimai Sangam Vs. Municipal Administration and Water Supply Department) to the case on hand.
62. In the light of the decision that I have reached, the claim of respondents-4 to 6 on the scope of review is not of any consequence. For completion of the narration of the issue, I hold that the claim of respondents-4 to 6 herein before the first respondent being in the nature of appeal under Section 79, the benefit of Section 81 is available by way of review. Although I hold that there are no merits in the review order of the Government, yet I agree with the submission of Mr.K.M.Vijayan, learned senior counsel appearing for the petitioner, as to the maintainability of the review application.
63. This leaves us with one more issue as to the legality of the resolution of the Corporation declaring the reserved land as belonging to it under the resolution dated 27.11.1995. As held in the decision of the Apex Court reported in (1995) 1 SCC 47 (PT.Chet Ram Vashist Vs Municipal Corporation of Delhi), the Corporation's right over the reserved space is as a custodian only to manage the same in the interest of the society in general, which is not the same as claiming transfer of property to itself. Considering the conditions of sanction to the layout scheme and the land not required, reserved or designated by any proceeding, the preparation of detailed development plan and considering Section 49 of the Tamil Nadu Town and Country Planning Act that the reservation of the site for public purpose is in terms of Section 49(2) of the Act, with the layout sanctioned subject to condition on reservation, the right of the Corporation is limited to managing and maintaining the area for public purpose. The provisions of the Coimbatore City Municipal Corporation Act do not contemplate any transfer of the reserved area, merely by reason of directing respondents-4 to 6 to reserve the area for public purpose. The said scheme on reservation goes along with the provisions under Section 432(11) of the Coimbatore City Municipal Corporation Act, even though the third espondent had sought to have the claim made under Section 432 (10) of the Coimbatore City Municipal Corporation Act.
64. The contention of respondents-4 to 6 that there cannot be a deprivation of a property right in violation of Article 300-A is misplaced, since the land in question is not reserved or designated for any acquisition. The sanction of the layout made subject to a condition of reservation of the land for the public purpose, the owner of the land had no grievance at all therein to this condition. In the circumstances, the conditions which were agreed to by the erstwhile owner shall continue to bind everyone coming under the sanctioned scheme including those claiming any interest under/through him. Consequently, there is no gain saying in the contention of respondents-4 to 6 that the property rights under the constitution are violated.
65. Going by the sanction, the reservation of an extent of the land for public purpose continues to have its force. The Corporation and the owner of the property are bound to manage the same for the benefit of the public. The rights of the Corporation is limited to that of a custodian to manage the reserved site for public purpose. In the absence of any provision either under the Coimbatore City Municipal Corporation Act or under the Tamil Nadu Town and Country Planning Act that except in respect of cases reserved/designated in the plan as required for public purpose falling under Sections 36 to 39, reserving a site in a layout plan on an application under Section 49 for public purpose, does not, by a mere specifying of the land as open space, fall for consideration under Section 36 to 39. The reservation, thus, by itself, does not result in the transfer of the property to the Corporation. The effect of the reservation is that while losing his exclusive right as a legal owner, thereby, restricting the rights of the owner for selling or transferring his interest in it, the owner holds the land for the benefit of the society creating an obligation in the nature of trust. The Corporation becomes a custodian of the public interest to manage it in the interest of the society at large. In this, both the owner as well as the Corporation on one hand and all those purchasers share the equal responsibility of maintaining and preserving the reserved area, thereby, protecting the area on public purpose from abuse from any quarters. In the circumstances, the question of de-reservation does not arise, or for that matter, transferring the reserved area to the name of the Corporation. The order made by the Government in the review petition is totally devoid of any merits and there are no grounds indicated in the order to consider how the private interest has been considered as outweighing the public interest to order de-reservation.
66. While considering a situation of de-reservation, in the decision reported in 2007-3-L.W.259 (Sri Devi Nagar Residences Welfare Association V. Subbathal), this Court pointed out "A public park is a gift 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." In the circumstances, this Court held that the area reserved for public purpose cannot be used for any other purpose and directed the owner of the land to maintain the park, failing which, the Corporation shall develop the area as a park with the cooperation of the owner with whom the title continued to remain and that the Corporation shall not collect property tax on the reserved site.
67. I feel that the direction similar to the one given by this Court merits to be issued here too. Hence, I have no hesitation in allowing the writ petition filed by the Association in W.P.No.23980 of 2005 and dismissing the writ petition in W.P.No.25371 of 2002 filed by the owner with the direction that the Corporation, as the custodian of the public interest, shall maintain and manage the open space as a park for the public to use. Considering the interest of the Association members, this Court feels that the members of the Association may contribute to the maintenance and upkeep of the area reserved for public purpose, which would really serve the cause of the reservation to enhance the quality of life.
In the result, W.P.No.23980 of 2005 is allowed and W.P.No.25371 of 2002 is dismissed. No costs.
Index: Yes / No
Internet: Yes / No .01.2010
Sl/ksv
To:
1. The Secretary to Government,
Municipal Administration &
Water Supply Department,
State of Tamil Nadu
Fort St. George, Chennai 600 009.
2. The Special Commissioner,
Town & Country Planning Department,
807, Anna Salai, Chennai 600 002.
3. The Commissioner,
Coimbatore City Municipal Corporation,
Coimbatore.
CHITRA VENKATARAMAN,J.
sl/ksv
Order in
Writ Petition Nos.23980 of 2005
& 25371 of 2002
Delivered on:
04.01.2010