Madras High Court
Adayar Venkatarathnam Nagar Residents ... vs The Government Of Tamil Nadu Rep. By Its ... on 14 October, 2003
Equivalent citations: AIR2004MAD159, AIR 2004 MADRAS 159
Author: D. Murugesan
Bench: D. Murugesan
ORDER D. Murugesan, J.
1. The petitioner is "Adayar Venkatarathnam Nagar Residents Welfare Association" represented by its Secretary. The grievance of the petitioner-association is that the City Cooperative Housing Society Limited with No. X-422 purchased lands bearing S.F. Nos. 18/3, 19/3, 22/2 and 23 of Pallipattu Village, measuring about 200 grounds by registered sale deeds dated 3.8.1962. After the lay-out plan was drawn, the area was plotted as 85 house sites. In the lay out plan, plot Nos. 1.C, 2.E and 6.E measuring about four grounds were earmarked for public purpose. The grievance of the petitioner-association is that the 6th respondent who is the owner of plot Nos. 4 and 5, encroached upon 664 sq.ft. On the land earmarked for public purpose and has put up construction. The 4th respondent Society has ultimately ratified the construction and sold that extent to the 6th respondent. The 4th respondent society is making attempt to sell the remaining vacant land to the 6th respondent thereby converting the land absolutely earmarked for public purpose into one of private use.
2. The learned counsel would rely upon the judgment of the Apex Court reported in PT.CHET RAM VASHIST v. MUNICIPAL CORPORATION OF DELHI to contend that the place earmarked as per the lay out cannot be altered. More particularly, the Society ceases to be the owner of the land as that land is available only for the benefit of the Members of the Petitioner-association.
3. The 4th respondent filed a counter affidavit. The allegation that the 6th respondent has encroached upon 664 sq.ft. in the land earmarked for public purpose and had put up construction and that portion of the land has been sold to the 6th respondent is denied. Insofar as the public purpose is concerned, the 4th respondent has stated in the counter that the members of the petitioner-association ceases to be the owners of the land and they cannot claim a right over the land earmarked for public purpose. The 4th respondent society in its Resolution dated 24.3.1991 resolved to construct a Community Hall for public use-cum-office building of the society as the Society is functioning in a rental building. The learned counsel for the 4th respondent society would further submit that there is no proposal for selling the land earmarked for public purpose to the 6th respondent as apprehended by the petitioner-association.
4. I heard Mr. S.V. Duraisolaimalai, learned Government Advocate appearing for the respondents 2, 3 and 5 as well as T.S. Rajamohan for the 6th respondent.
5. The question as to how the land earmarked for public purpose should be dealt with, is considered by the Apex Court in the judgment reported in PT.CHET RAM VAHIST v. MSUNICIPAL CORPORATION OF DELHI () . The relevant paragraph reads as under:
"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 reser- vation that it shall be used by the public in general. The effect of such reservation is that the owner ceases to be a legal owner of the land in dispute and he holds the land for the benefit of the society or the public in general. It may result in creating an obligation in nature of trust and may preclude the owner from transferring or selling his interest in it. It may be true as held by the High Court that the interest which is left in the owner is a residuary interest which may be nothing more than a right to hold this land in trust for the specific purpose specified by the coloniser in the sanctioned lay-out 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 in the person in whose favour it is transferred. The resolution of the Committee to transfer land in the colony for parks and school was an order for transfer without there being any sanction for the same in law"
6. A reading of the said judgment it is clear that in a lay-out plan if an area is reserved for public purpose viz., Community Hall, it shall be used by the public in general and the effect of such reservation is that the owner ceases to be a legal owner of the land in dispute. The land in question is earmarked for public purpose and the owner holds the land for the benefit of the society or the public in general. The society though formed the lay out and has allotted the plots to various members of the petitioners-association, insofar as the land earmarked for public purpose is concerned, the owner of the land in terms of the above judgment, holds the land only for the benefit of the members of the Society or for public purpose and the owner of the land is precluded from transferring or selling the land in question to third parties. Moreover, in view of the fact that the 4th respondent filed the counter stating that the 4th respondent has resolved to construct a community hall, no exception could be taken by such resolution, the 4th respondent has decided to put up a community hall for public purpose. It may be used by the members of the petitioner-association as well as the public. However, the Resolution insofar as resolving to put up office, cannot be considered as public purpose as putting up office room for running the society, as if, the society is the owner of the land, is impermissible in view of the Apex Court Judgment cited supra. Hence, it is clear that the resolution of the 4th respondent society dated 24.3.1991 is only to put up a community hall in the remaining place in question and not to put up a separate office building for the society.
7. Coming to the grievance of the petitioner-association that even the office bearers of the petitioner-association are not allowed to remove the bushes in the vacant site and when they attempted to clear the bushes, a complaint was lodged by the 4th respondent. Since the place in question is earmarked for public purpose, the 4th respondent society is not entitled to prevent the members of the petitioner-association even to clean the bushes in the vacant space and that the 4th respondent is entitled to put up a Community Hall for the use of the public only. The question as to whether the 4th respondent society is entitled to sell the land which is meant for public purpose to the 6th respondent, can be decided in the suit filed by the Special Officer and it is always open to the members of the petitioner-association to question the same before the appropriate forum. With the above observations, the Writ Petition is disposed of. No costs. Consequently, W.M.P. No. 2619/1997 is closed.