Madras High Court
2/675-B vs W.P.No.49314/2006 on 23 July, 2012
Author: K.Chandru
Bench: K.Chandru
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 23 / 07 / 2012
CORAM
THE HONOURABLE MR.JUSTICE K.CHANDRU
W.P.NOS.49314 OF 2006 AND 7718 OF 2008
AND CONNECTED MISCELLANEOUS PETITION
S.R.Nagar Makkal Nala Sangam
Regd. No.59/2006
2/675-B, Vivekanandar 5th Street,
Andipalayam Post, Tiruppur 641 687.
Rep. By its President S.Samiappan ... Petitioner in both WPs'
Versus
W.P.NO.49314/2006
-----------------
1.Tiruppur Co-operative Housing
Society Ltd., K.1917,
Rep. By its Secretary
Kumaran Road, Tiruppur.
2.The Director
Town and Country Planning
807, Anna Salai,
Chennai 600 002.
3.The Regional Transport Officer
Tiruppur.
(R3 impleaded as per order dated
18.06.2008 in M.P.No.1 / 2008 in
W.P.No.49314 / 2006) ... Respondents
W.P.NO.7718/2008
----------------
1.State of Tamil Nadu
Rep. By its Secretary to Government
Rural Development and Panchayat Raj
(C2) Department
Fort St. George, Chennai.
2.The Director
Town and Country Planning
807, Anna Salai,
Chennai 600 002.
3.The Regional Transport Officer
Tiruppur,
Coimbatore District.
4.Tiruppur Co-operative Housing
Society Ltd., K.1917,
Rep. By its Secretary
Kumaran Road, Tiruppur. ... Respondents
PRAYER IN W.P.NO.49314/2006: Writ Petition filed under Article 226 of the Constitution of India praying for the issuance of Writ of Mandamus, to forbear the respondents from utilizing the plots in the approved layout bearing No.L.P/R (G.P.N.) No.117/86 to the extent of 15.98 acres in S.R. Nagar, Tiruppur which was reserved for the public purpose viz. School, Park, Play Ground, Auditorium, Hospital, Library and Children Play Ground for any other purpose viz. construction of a building for running a private Arts College for Women, Ladies Hostel, RTO Office and to sell the house sites to the relatives of the staffs of the 1st respondent Society.
PRAYER IN W.P.NO.7718/2008: Writ Petition filed under Article 226 of the Constitution of India praying for the issuance of Writ of Certiorari, to call for the records relating to the Government Order in G.O.(Ms) No.188, Rural Development and Panchayat Raj (C2) Department, dated 19.11.2007 on the file of the 1st respondent and quash the same.
For Petitioner : Mr.S.Doraisamy
For Respondent-1 in
W.P.No.49314/2006
For Respondent-4 in
W.P.No.7718/2008 : Mr.V.Sanjeevi
For Respondents 2&3
in W.P.No.49314/2006
For Respondents 1 to 3
in W.P.No.7718/2008 : Mr.L.P.Shanmugasundaram
Additional Government Pleader
COMMON ORDER
The petitioner in both the writ petitions is one and the same Association, which is a Residents' Welfare Association at S.R.Nagar, Andipalayam Post, Tiruppur.
2.In the first writ petition viz. W.P.No.49341 of 2006, the petitioner Association sought to forbear the respondents from utilizing the plots in the approved layout bearing No.L.P/R(G.P.N) No.117/86 to the extent of 15.98 acres in S.R.Nagar, Tiruppur, which was reserved for public purpose namely for locating School, Park, Playground, Auditorium, Library and Children Playground.
3.The writ petition in W.P.No.49314 of 2006 was admitted on 20.12.2006. On the same day, pending the writ petition, in M.P.No.1 of 2006, an interim injunction was granted restraining the respondents from starting construction of a building for running the private Arts College for Women, Ladies Hostel, RTO Office and to sell the house sites to the relatives of the staffs of the Tiruppur Co-operative Housing Society Limited in the approved lay out.
4.Aggrieved by the grant of interim order, the first respondent Tiruppur Co-operative Housing Society filed an application in M.P.No.1 of 2007 to vacate the interim injunction granted on 20.12.2006. in that application, on 02.03.2007, this Court held that so far as the location of Rural Health Care Centre and Hostel for Women proposed to be constructed, the Director of Town and Country Planning has already approved the building plan vide his proceedings dated 06.12.2004 and therefore, there was no impediment for constructing those Health Care Centre and the Hostel for Women. It was also observed that the petitioner had not challenged the approval dated 06.12.2004 granted by the second respondent Director of Town and Country Planning. Hence, the interim injunction was vacated in so far as the proposal of the first respondent for the construction of Rural Health Care Centre and the Hostel for Women. In so far as the vacation of the Regional Transport Office is concerned, it was stated that no approval was granted and hence, the interim injunction was directed to be continued until further orders.
5.Subsequently, M.P.No.1 of 2008 in W.P.No.49314 of 2006 was filed by the Regional Transport Officer, Tiruppur to implead himself as party to the writ petition and that application was allowed on 18.06.2008.
6.On notice from this Court, the second respondent Director of Town and Country Planning has filed a counter affidavit dated Nil 2008.
7.During the pendency of the aforesaid proceedings, the same Association filed the second writ petition viz. W.P.No.7718 of 2008 seeking to challenge the order of the Government in G.O.Ms.No.188, Rural Development and Panchayat Raj Department, dated 19.11.2007. By the aforesaid Government Order, the State Government found that S.Nos.39, 40 and 41 part in Andipalayam Village were allotted for Children's playground as per the Tamil Nadu Panchayats Building Rules, 1997 and therefore, ordered for conversion of the said area for constructing the Regional Transport Office building by relaxing Rule 18 of the Tamil Nadu Panchayats Building Rules, 1997.
8.The writ petition in W.P.No.7718 of 2008 was admitted on 31.03.2008. On notice from this Court, the second respondent Director of Town and Country Planning has filed a counter affidavit dated Nil June 2008. Since the two writ petitions are interconnected, they have been heard together.
9.It is seen from the records that the Tiruppur Co-operative Housing Society Limited developed a residential layout to an extent of 106.50 acres duly approved by the Regional Deputy Director of Town and Country Planning, Coimbatore and the same was revised at a later stage. In he said layout, reservation were provided for both saleable area as well as non-saleable area to an extent of 15.98 acres. As per document No.2532/1992 dated 13.05.1992, the Housing Society gifted the land to the Tiruppur Panchayat Union for resorting area for Parks, Play spaces, open spaces to an extent of 4.96 acres and the road portions of 522100 sq.ft and 523100 sq.ft for continuous maintenance. The saleable reservation more than 5% was developed and the same was available for public use. It was also stated that an area of 38920 sq.ft were not covered in the document and the same was gifted to the Regional Transport Office, Tiruppur for construction of office building for public cause, after getting prior permission from the Registrar of Co-operative Housing Society vide order dated 15.06.2002. The Regional Transport Officer submitted a proposal to the Secretary to Government, Rural Development and Panchayat Raj Department through proper channel for the issuance of the Government Order and accordingly, G.O.Ms.No.188, Rural Development and Panchayat Raj Department, dated 19.11.2007 was issued for conversion of site. The Government also sanctioned necessary funds for construction of office building vide G.O.Ms.No.393, Home (Transport VIII) Department, dated 27.05.2005. Based upon the Government Order, the Tiruppur Local Planning Authority has also sanctioned the building plan for locating the Regional Transport Office. It was stated that the Government issued the impugned order as a special case by relaxing the power under Rule 18 of Tamil Nadu Panchayat Building Rules, 1997, based upon the recommendation of the Local Planning Authority and the land has already been gifted to the Regional Transport Office. It was further stated that for relaxation or conversion of use in an approved lay out, the power is vested with the Government and the location of Regional Transport Office will only help the public. Further, an area of 4.96 acres of land is available for Park, Open Space and Children Play Space and more than 5% saleable reservation are developed and are utilised by the public.
10.In the counter affidavit filed in W.P.No.49314 of 2006, it was stated that the Housing Society had executed the gift deed on 22.04.1992 in favour of the Commissioner, Tiruppur Panchayat Union to an extent of 98.5 cents, which is earmarked for open space. An area of 38920 sq.ft was earmarked for children play space and 98 cents was earmarked for medical centre and 35 cents for Nursery School. In respect of 38920 sq.ft, a request was made to the Society for handing over the said place by way of a gift deed for the construction of Regional Transport Office. The Society, by letter dated 15.06.2000 permitted to gift the said land subject to the condition that permission will have to be obtained from the Director of Town and Country Planning as the place was originally earmarked for children play space. The gift deed was also registered as document No.2602/2002 in the office of the Joint Sub-Registrar, Tiruppur, on 18.06.2002. After obtaining permission from the Director of Town and Country Planning, the Transport Department has started construction thereon. None of the allottees numbering more than 1034 have objected to the same. The petitioner Sangam was not at all allotted a house site. The Director of Town and Country Planning had permitted the construction of the Regional Transport Office building in an extent of 38920 sq.ft.
11.The petitioner filed a rejoinder dated 19.03.2008, in which it was stated that the respondents have no authority to transfer the land situated in S.Nos.39,40 and 41 by way of gift deed dated 18.06.2002, as the said land was earmarked for children playground in the approved lay out and hence, the transfer of the said land for some other purpose is void. Further, no modification of the master plan was made and hence, the respondent has no authority to proceed with the construction of the Regional Transport Office building.
12.The only question that arises for consideration is as to whether the whether the Co-operative Housing Society is legal in gifting the land, which is earmarked for a particular public purpose and whether the Government granting relaxation in terms of Rule 18 of the Tamil Nadu Panchayats Building Rules, 1997 is legally justified.
13.In this context, it is necessary to refer to a judgment of the Division Bench of this Court in K.RAJAMANI AND OTHERS VS. ALAMUNAGAR RESIDENTS' WELFARE ASSOCIATION AND OTHERS [2011 (1) CTC 257] wherein the Division Bench has held that the land once reserved for public purpose cannot be released for some other purpose. Once permission is accorded, treating specific area as one for public purpose and thereafter, even the Planning Authority shall not have power to exempt that land for being put to use for any other purpose. The State Government also cannot have any jurisdiction to alter the conditions imposed in the layout whereby certain lands are earmarked for open space to be used for public purpose. In paras 17, 18, 19, 20 and 21, it was observed as follows:
"17. For our purpose, the extent of land in a new town development area owned by a private person shall be used only in conformity with such development as provided under Section 47 of the Act. For such use, such person should apply to the appropriate planning authority for permission to erect any building or make or extend any excavation or carry out any mining or other operation, make any material change in the use of the land or construct, form or lay out any work. For that purpose, one should make an application for permission under Section 49. In terms of sub-section (2) of Section 49, the appropriate planning authority is required to consider the purpose for which the permission is required, the suitability of the place for such purpose and the future development and maintenance of the planning area. In terms of sub-section (3) of Section 49, the appropriate planning authority may also refuse to grant permission to any person, but by giving reasons thereof. Once the planning permission is granted, the appropriate planning authority would have power to either revoke or modify the permission granted in terms of Section 54 of the Act. Of course, there is a general power conferred on the Government under Section 90 of the Act to call for records, examine the same and pass orders after satisfying themselves as to the regularity of such proceedings or correctness, legality or propriety or any decision passed or made therein. This power would be available to the Government only in respect of either the permission granted or refused by the appropriate planning authority for a land to be put into use in a developed area. This power cannot be extended to the permission accorded by the Government for the purpose of approval granted by it in terms of Section 28 for regional plan, master plan or the new town development plan, as those plans could be varied, revoked or modified only under Section 32. In our considered view, such power cannot be extended to alter, revoke or modify the conditions imposed in the layout plan. In that view of the matter, we hold that once such permission is accorded and in that permission if a specified area is earmarked for public purpose, even the planning authority shall not have power to exempt that land for being put to use for any other purpose. In that context, the State Government also cannot have any jurisdiction to alter the conditions imposed in the layout, whereby certain lands are earmarked as open space to be used for public purposes.
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 the case of Pillayarpatti Karpaga Vinayagar Koil Nagarathar Trust thru Ramanathan v. Karpaga Nagar Nala Urimai Sangam Rep.by Secretary and others, Civil Appeal Nos.7305-7306 of 2010 dated 1.9.2010 was brought to our notice. In that case, the layout to an extent 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 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 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).
19.Point No.(ii): This takes us to the next question as to whether the lands specified for public purpose and left open in the layout could be used for any other public purpose. The question as to whether a land specified for public purpose and left open in a layout could be used for any other purpose came up for consideration before the Apex Court as well as this Court and we have enough authorities on the subject. The Apex Court in Bangalore Medical Trust Vs. B.S.Muddappa, (1991) 4 SCC 54, has held as follows:
"Public park as a place reserved for beauty and recreation was developed in 19th and 20th century and is associated 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 essentially a commercial venture, a profit oriented industry. Service may be its motto but earning is the objective. Its utility may not be undermined but a park is a necessity not a mere amenity. A private nursing home cannot be a substitute for a public park. No town planner would prepare a blueprint 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 B.D. Act itself provided for reservation of not less than 15 percent of the total area of the layout in a development scheme for public parks and playgrounds the sale and disposition of which is prohibited under Section 38-A 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 give rise to health hazard."
The very same question came up for consideration again before the Apex Court in Pt.Chet Ram Vashist V. Municipal Corporation of Delhi, (1995) 1 SCC 47, wherein the Apex Court has held as follows:
"6.Reserving any site for any street, open space, park, school etc. in a layout plan is normally a public purpose as it is inherent in such reservation that it shall be used by the public in general. The effect of such reservation is that the owner ceases to be a legal owner of the land in dispute and he holds the land for the benefit of the society or the public in general. It may result in creating an obligation in nature of trust and may preclude the owner from transferring or selling his interest in it. 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 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 school was an order for transfer without there being any sanction for the same in law."
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.
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."
14.The said judgment of the Division Bench squarely applies to the case on hand. Hence, the impugned order dated 19.11.2007 stands set aside and the writ petition in W.P.No.7718 of 2008 stands allowed. The writ petition in W.P.No.49314 of 2006 is also allowed and the respondents are restrained from utilizing the plots in the approved layout to the extent of 15.98 acres in S.R.Nagar, Tiruppur, which is reserved for public purpose. No costs. Consequently, connected miscellaneous petition is closed.
TK To
1.The Secretary Tiruppur Co-operative Housing Society Ltd., K.1917, Kumaran Road, Tiruppur.
2.The Director Town and Country Planning 807, Anna Salai, Chennai 600 002.
3.The Regional Transport Officer Tiruppur.
4.The Secretary to Government Rural Development and Panchayat Raj (C2) Department Fort St. George, Chennai