Prayer: This Writ Petition is filed under Article 226 of the Constitution of India, seeking for a writ of Mandamus, directing the respondents 1 and 2 to remove the encroachments made in Plot No.290A, Avvai Nagar, (New ASTC HUDCO), Hosur-635 109, Dharmapuri District by the 3rd respondent or any other person and retain the above said plot as park as per the site plan of Tamilnadu Housing Board, Hosur Housing Unit approved by the Director of Town and Country Planning.
O R D E R
1. Temple, constructed in a place earmarked for a park under a Scheme, is being used as a shield, against the law of encroachment.
2. Petitioner has sought for a mandamus, directing the respondents 1 and 2 to remove the encroachments made in Plot No.290A, Avvai Nagar, (New ASTC HUDCO), Hosur-635 109, Dharmapuri District by the 3rd respondent or any other person and retain the above said plot as park as per the site plan of Tamilnadu Housing Board, Hosur Housing Unit approved by the Director of Town and Country Planning.
3. The case of the petitioner is that the Housing Board acquired lands in large scales for execution of various housing schemes in and around Hosur. One such scheme was called as 'New ASTC Hudco' Scheme, named as "Avvai Nagar". Plots were developed by the Tamilnadu Housing Board, Hosur, Dharmapuri District. Upon consideration of applications for allotment of houses, either under the outright purchase scheme or Hire Purchase Scheme, plots were allotted.
4. The petitioner has preferred an application on 06.11.1987 for allotment of L.I.G. House and a plot bearing No.261 in New A.S.T.C. Hudco scheme, was allotted to the petitioner, vide proceedings No.R5/11801/90 dated Nil.10.1990. On payment of the necessary cost, the Executive Engineer, Tamilnadu Housing Board, Hosur, Dharmapuri District, the 2nd respondent executed a sale deed on 02.02.2001 in favour of the writ petitioner. As per the plan sanctioned by the Director of Town and Country Planning, Chennai, Plot No.290-A (S.No.326/1) was earmarked for a park. The above plot is situated opposite to the petitioner's plot bearing No.261.
5. It is the further case of the petitioner that in between the petitioner's plot and the said park, there is a 9 meters road. According to the petitioner, the park is maintained by the Housing Board. The petitioner has further contended that after the construction of the houses in the developed area, on 13.06.1986, the 2nd respondent, Housing Board has handed over the maintenance of the area to the Commissioner, Hosur Municipality, Dharmapuri District. Since then, all the streets, roads, park and public amenities, have been vested with the Commissioner, Hosur Municipality, Dharmapuri District.
6. The petitioner has further contended that Mr.R.Subramanian, resident of Plot No.L288, New A.S.T.C. Hudco, Avvai Nagar, Hosur, Dharmapuri District, has encroached upon Plot No.290-A, without any authority. According to the petitioner, the said plot has been earmarked only for a park. It is also his further contention that the said R.Subramanian has put up a temple and in the name of a temple, the 3rd respondent is indulging in all kinds of nuisance, like putting up the loud speakers, conducting ceremonies and rituals, causing hindrance to the petitioner and others.
7. According to him, usage of loudspeakers causes sound pollution, affecting the studies of the children. Therefore, the residents have given a complaint to the Commissioner, Hosur Municipality, Dharmapuri District, the 1st respondent, for removal of the encroachment. As there was no action, one Sundaram, a resident of that area was constrained to prefer a writ petition in W.P.No.1632 of 2002 before this Court and by order dated 29.01.2002, a direction was given to consider the said representation. The petitioner has further contended that the said order has not been implemented, in letter and spirit.
8. The petitioner has further contended that his house is situated opposite to the unauthorised construction of the 3rd respondent in Plot No.290-A and that it affects the right of the petitioner to enjoy the portion of the land, earmarked for a park. It is also his contention that the unauthorised construction cannot be allowed to be continued. Being aggrieved by the unauthorised construction in an area earmarked for a park and contending inter alia that the right of the petitioner to use the place is taken away, by an encroacher, the petitioner is stated to have made a representation dated 10.11.2003 to the Commissioner, Hosur Municipality, Dharmapuri District, the 1st respondent herein, to remove the unauthorised construction. Since no prompt and effective action has been taken, the petitioner has come forward with the present writ petition, for a mandamus, as stated supra.
9. There is no representation on behalf of the 1st respondent. Mr.R.Jayaseelan, learned counsel appearing for the 2nd respondent Housing Board, has submitted that the subject land has been now vested with the Hosur Municipality, Dharmapuri. His submission is placed on record.
10. The 3rd respondent in his counter affidavit, has contended that the present writ petition is nothing but a replica of the public interest writ petition filed earlier, by one Mr.Sundaram in W.P.No.1632 of 2002. As the petitioner therein did not achieve the desired result, he has instigated Mr.G.Pandi, the present petitioner to file this writ petition. According to him, the only reason for filing the present writ petition, is to prevent the 3rd respondent from doing poojas in the temple and that it has not caused any hindrance or affected the rights of the writ petitioner. He has further submitted that though, Plot No.290-A was earmarked for a park, the place was not made as a park either by the public or by the 1st respondent.
11. It is also his contention that there was a small (thatched shed) temple, 'Puttru Mariamman' Temple put up by the public, even prior to earmarking the area, for park. The temple was put up in or around 1994. All the public have joined together and constructed a small temple measuring about 200 sq.ft (4 x 4.6 metres) for worship. According to the 3rd respondent, even in the year 1994, though the area was earmarked for park, it was not handed over to the 1st respondent. The people residing in the said locality are worshipping the deity. Electricity service connection has also been obtained. A public trust has also been created and registered on 31.05.2001. The 3rd respondent is the trustee and archagar of the temple. The 3rd respondent, has denied the contention that loud speakers have been used. According to him, existence of the temple does not cause any nuisance to the children nor there is any sound pollution. He has also submitted that the present writ petition is nothing but an inducement by the unsuccessful writ petitioner in W.P.No.1632 of 2002.
12. According to him, the construction put up by the 3rd respondent and others, and used by the general public, cannot be said to be an encroachment, warranting any orders from this Court. It is his further contention, that the averments leading to the filing of this writ petition, is nothing but a caste discrimination, as the person who conducts poojas, belongs to Scheduled Caste community, whereas, the petitioner belongs to some other Community. He has also stated that in Phase No.8, Tamilnadu Housing Board Scheme, temples have been constructed in public utility places and that nobody has opposed the construction. Seeking removal of a small temple, is only due to the caste difference and nothing more. For the above said circumstances, the petitioner has sought for dismissal of the writ petition.
Heard the learned counsel for the parties and perused the materials available on record.
13.Before adverting to the rival contentions, this Court deems it fit to consider some of the cases, dealing with the duty of the authorities in preserving the places, meant for public amenities, like park, street, road, etc.,
(i) In Virender Gaur and others Vs. State of Haryana and others, reported in 1998 (I) CTC 143, the Supreme Court has held as follows:-
"8. Section 203 of the Act enjoins the Municipality to frame the Scheme Providing environmental and sanitary amenities and obtain sanction from the competent authority to provide, preserve and protect parks, open lands, sanitation roads, sewage, etc. to maintain ecological balance with hygienic atmosphere not only to the present residents in the locality but also to the future generation. The lands vested in s. 61(c) of the Act should be used for the purposes envisaged therein. We do not agree with the appellants for non-user of open land by the Municipality for more than two decades, the land stood divested from the Municipality and vested in them. Yet the Municipality has to use the land for the purposes envisaged in the Scheme read with those found in s. 61 unless unavoidable compelling public purpose require change of user. Take a case where in the zonal plan certain land is marked out and reserved for park or recreational purpose. It cannot be acquired or allotted for building purpose though housing is public purpose.
9. Section 66 gives power to the Municipality to transfer any of the lands vested in it to the Government in accordance with the provisions of the Act but they will be subject to s. 64 thereof and other related purposes. Section 250 of the Act reserves general power in the Government and it provides that the State Government may issue directions to any Committee for carrying out the purposes of the Act and, in particular, (a) with regard to various uses to which any land within municipal area may be put (e) adoption of development measures and measures for promotion of public safety, health, convenience and welfare; and (f) sanitation and cleanliness etc. Therefore, the Government, though, have power to give directions that power should be used only to effectuate and further goals of the approved Scheme, zonal plans etc. and the land vested under the Scheme or reserved under the plan would not be directed to be used for any other public purposes within the area envisaged thereunder unless grave compelling purpose of general public demands/requires issuance of such directions.
10. The question is whether the Government can lease the land to the private trust like PSS-4th respondent in the appeal. It is seen that the land is vested in the municipality and the Government have no right and title or interest therein. They have no power to give either by lease to PSS or deal with the property as if the land vested in it. Therefore, the grant to lease by the Government in favour of PSS is clearly without authority of law and jurisdiction. This Court has considered the power of the Government to grant lease or issue directions to the Corporation to lease out open land reserved for public use to private trust to establish hospital and explained the context in which the power could be exercised when the land was reserved for town scheme or city scheme in Bangalore Medical Trust v. B.S. Muddappa , JT 1991 (3) SC 172 : (1991) 4 SCC 54. The facts therein were that a site near the Sankey's Tank in Rajamahal Vilas Extension in the City of Bangalore was reserved as an open space in an improvement scheme adopted under the City of Bangalore improvement Act, 1945. Pursuant to the orders of the State Government dated May 27, 1976 and June 11, 1976 and by its resolution dated July 14, 1976, the Bangalore Development Authority allotted the open space in favour of the appellant, a Medical Trust, for the purpose of constructing a hospital. That allotment was challenged by the respondents in the locality. This Court considered the power of the Government for granting assignment or directions to lease out in favour of the private trust and consequential effect emanating from the user of the land reserved for public purpose or to any other purpose. In para 23 of the judgment, this Court held that the Scheme is meant for the reasonable accomplishment of the statutory object which is to promote the orderly development of the city of Bangalore and adjoining areas and to preserve open spaces by reserving public parks and playgrounds with a view to protecting the residents from ill-effects of urbanisation. It meant for the development of the city in a way that maximum space is provided for the benefit of the public at large for recreation, enjoyment, ventilation and fresh air. The statutory object is to promote the healthy growth and development of the city of Bangalore and the areas adjacent thereto. The legislative intent has always been the promotion and enhancement of the quality of life by preservation of the character and desirable aesthetic features of the city. The subsequent amendments are not a deviation from or alteration of the original legislative intent but only an elucidation or affirmation of the same. In paragraph 25 of the judgment, this Court further held that the reservation of open spaces for parks and playgrounds are universally recognised as a legitimate exercise of statutory power nationally related to the protection of the residents of the locality from the ill-effects of urbanisation. The residents of the locality are the persons intimately, vitally and adversely affected by any action of the BDA and the Government which is destructive of the environment and which deprives them of facilities reserved for the enjoyment and protection of the health of the public at large. The residents of the locality, such as the writ petitioners, are naturally aggrieved by the impugned orders and they have, therefore, the necessary locus standi. The action of the Government and the BDA was held to be inconsistent with and contrary to the legislative intent to safeguard the health, safety and general welfare of the people of the locality. These orders evidence a colourable exercise of power and are opposed to the statutory scheme. The ratio therein squarely applies to the facts in this case.
(ii) In R.Varadarajan and others Vs. The Director of Town and Country Planning and others, reported in 2004 Writ L.R 514, at paragraphs 22 to 25 and 28, this Court held as follows:-
22. Reliance placed by learned Senior Counsel for the respondents on the judgment of S.M.Ali Mohamed,J. In M.R.GOPALA KRISHNA v. THE SPECIAL OFFICER, TIRUCHY CORPORATION & OTHERS (1996 I M.L.J.,108) is not appropriate considering the facts of the present case. That was a case in which the question which arose for consideration was as to whether the open space left for School/Park etc., would vest with the Municipality or Corporation.
23. Per contra, in SHEIT RAM DEAD BY L.RS. v. MUNICIPAL CORPORATION OF DELHI, the Supreme Court held that reserving any of the site for street, open space, park, school, etc., in the lay out plan was for public purpose and it shall be used only by the public. The effect of such reservation is that the owner ceases to be the legal owner of the land and he owns the land only for the benefit of the public in general. The Supreme Court further held that it would create an obligation in the nature of a Trust which would preclude the owner from transferring or selling the interest in the property. I had an occasion to follow the said judgment in KRISHNA NAGAR RESIDENTS' WELFARE ASSOCIATION v. DIRECTOR OF TOWN AND COUNTRY PLANNING (2001 (3) L.W., 828). In that case, there was an attempt to convert the area earmarked for park into a community hall under the exclusive control of an individual and it was held that the attempt to convert the property as belonging to a private individual was not permissible. Therefore, the law laid down by the Supreme Court is that common places as earmarked in the plan has to remain only common.
24. It follows that, in this case, the Society which is the owner of the property, cannot use the property contrary to the sanctioned lay out plan much less alienate the property in favour of private individuals for any use contrary to the lay out plan. In this case, the Society had indulged in such an illegal action and hence requires to be deprecated. Even the prayer that the authorities should approve the resolution cannot be entertained as the resolution is per se illegal.
25. It would also relevant to refer to the provisions of the Tamil Nadu Parks, Play-fields and Open space (Preservation and Regulation) Act, 1959 which has been enacted in the interest of and maintaining retaining such open spaces. A duty is cast upon the Government and the local authorities for the proper preservation and regulation of open spaces. The control has to be exercised not only over public parks and open spaces, but are also exercisable in respect of parks and play fields which are not vested with the Government or local authorities. It is true that the Act contemplates listing of such parks and play fields and the play field in this case, could not have been enlisted in terms of the said Act in view of the attitude of the Society in this case and the general attitude of indifference of local authorities. Reference to the said legislation is made only to emphasise the importance which the Legislature has chosen to bestow on the maintenance of such open spaces either public or private. It is true that the building Society has the power to seek for conversion, and also power in the Registrar and the T.P. Authorities to approve such conversion. But such a power is to be exercised only in public interest and not in violation of the terms and conditions on which lay out plan has been approved. Therefore, the question of conversion would arise only in rare situations of some unforeseen circumstances justifying such conversion and also provided a proper and effective substitute of open space is available.
28. In the above circumstances, I am inclined to hold that the entire exercise on the part of the Society to convert the playground as house site is totally illegal, collusive and detrimental to the interests of the Colony people. Hence, the prayer in the writ petition for directing the local authorities to grant approval cannot be accepted. It is pertinent to note that the Municipality has also filed a counter positively stating that the area which has been shown as open area in the approved lay out, cannot be converted into a house site.
(iii) In Sri Devi Nagar Residences Welfare Association Vs. Subbathal, reported in 2007 (3) L.W. 259, a Division Bench of this Court, while explaining, while explaining what is meant by "public purpose" at paragraphs 6.2, 6.3, 7, 10 to 14 16 and 17, also considered Bangalore Medical Trust's case reported in 1991 (4) SCC 54, Pt.Chetna Ram Vashist v. Municipal Corporation of Delhi reported in 1995 (1) SCC 47 and G.N.Khajuria (Dr.) v. Delhi Delinquent Authority reported in 1995 (5) SCC 762=AIR 1996 SC 253, held as follows:
6.2. The expression public purpose , is not capable of a precise definition and has not a rigid meaning. It can only be defined by a process of judicial inclusion and exclusion. In other words, the definition of the expression is elastic and takes its colour from the statute in which it occurs, the concept varying with the time and state of society and its needs. Whatever furthers the general interests of the community as opposed to the particular interest of the individual must be regarded as a public purpose. With the onward march of civilization our notions as to the scope of the general interest of the community are fast changing and widening with the result that our old and narrower notions as to the sanctity of the private interest of the individual can no longer stem the forward flowing tide of time and must necessarily give way to the broader notions of the general interest of the community. The emphasis is unmistakably shifting from the individual to the community. The words public purposes , used in Article 23(2) indicate that the Constitution uses those words in a very large sense. In the never-ending race the law must keep pace with the realities of the social and political evolution of the country as reflected in the Constitution. If, therefore, the State is to give effect to these avowed purposes of our Constitution we must regard as a public purpose all that will be calculated to promote the welfare of the people as envisaged in these directive principles of State policy whatever else that expression may mean, vide State of Bihar v. Kameshwar Singh, AIR 1952 SC 252.
6.3. It is impossible to precisely define the expression public purpose . In each case all the facts and circumstances will require to be closely examined in order to determine whether a public purpose has been established. Prima facie the Government is the best judge as to whether public purpose is served by issuing a requisition order, but it is not the sole judge. The Courts have the jurisdiction and it is their duty to determine the matter whenever a question is raised whether a requisition order is or is not for a public purpose, vide State of Bombay v. R.S.Nanji, AIR 1956 SC 294.
7. In G.N. Khajuria (Dr) v. Delhi Development Authority, (1995) 5 SCC 762 = AIR 1996 SC 253, where in a land reserved for public park in the approved layout plan of a residential colony, when an unauthorised allotment was given to the school, the Apex Court heavily came down against the Officer, who by misusing his power made unauthorised allotment and permitted unauthorised construction, and held that such reallotment is not only illegal but also unlawful.
For these reasons even though the judgment and decree of the High Court are liable to be set aside but we refrain from doing so. Yet in order to protect interests of the owners of house and residents of the colony it is directed that the order of the High Court shall stand modified to the following effect : (1)The Corporation shall have right to manage the land which was earmarked for school, park etc. (2)The Corporation shall not have any right to change the user of land which shall be for beneficial enjoyment of the residents of the colony. (3)It is left open to the Corporation to get the land transferred in its favour after paying the market price as prevalent on the date when the sanction to the layout plan was accorded. (emphasis supplied)
10. We, therefore, appreciate the interest of the residents of the area, who have purchased the plots as per the approved layout, that for the benefit of the ecology, certain areas should be earmarked for garden and park so as to provide fresh air to the residents of that locality. To that extent, we disagree with the learned Single Judge that the residents of the locality are not necessary parties for the simple reason that respondents 1 to 3 have got the layout approved, as per the proceedings dated 17.7.1994, with the specific conditions, referred to above, which becomes the part and parcel of the terms of the sale deeds. Therefore, virtually, these conditions, agreed by the land owner become the terms of covenant. Therefore, it would be too harsh to say that the residents of the locality are not proper parties.
11. The open space in a residential area or in busy townships is treated as lung space of the area. It provides fresh air and refreshment to the persons in the neighbourhood. Its presence ameliorates the hazards of pollution and it has to be preserved and protected for the sustenance of the men around. It is for the health and well- being of the inhabitants of the residential area. The same cannot be bartered for any other purpose. Apart from that, in view of the conditions imposed by the fifth respondent, by his proceedings dated 17.7.1974 addressed to the Executive Officer, Ganapathy Town Panchayat, which remain unchallenged by the owners of the layout land for all these years, the fourth respondent is estopped from using the area set apart as open space, for any other purpose.
12. Where open space for construction of public park is preserved and earmarked in the Plan for Development of a planned town, the Authorities cannot ignore or neglect to develop that open space into a public park within reasonable time. Unless an open space reserved for a public park is developed as such, the execution of the plan will remain incomplete. Buildings, as proposed in the plan, may have come up, amenities and civic amenities may have been provided and the people may have started living in the colony, yet the plan cannot be said to have been fully executed, if an open space meant for a park is not developed as such. The duty of the authorities is to implement the plan in entirety making the area beautiful with attractive public parks. Their job is not over when the area becomes habitable.
13. Good parks expansively laid out are not only for aesthetic appreciation, but in the fast developing towns having conglomeration of buildings, they are a necessity. In crowded towns where a resident does not get anything but atmosphere polluted by smoke and fumes emitted by endless vehicular traffic and the factories, the efficacy of beautifully laid out parks is no less than that of lungs to human beings. It is the verdant cover provided by public parks and greenbelts in a town, which renders considerable relief to the restless public. Hence the importance of public parks cannot be under-estimated. Private lawns or public parks are not a luxury, as they were considered in the past. A public park is a gift of modern civilization, and is a significant factor for the improvement of the quality of life. Open space for a public park is an essential feature of modern planning and development, as it greatly contributes to the improvement of social ecology.
14. We are therefore, of the firm opinion, that the statutes in force in India and abroad reserving open spaces for parks and play grounds are the legislative attempt to eliminate the misery of disreputably housing condition caused by urbanisation. Crowded urban areas tend to spread disease, crime and immorality. Reservation of one space for parks and play ground is universally recognised as a legitimate exercise of statutory power rationally related to the protection of the residents of the locality from the ill- effects of urbanisation and the Apex Court decisions referred supra, fully support the view that the area set apart for park as per the approved lay out plan, cannot be used or transferred for any other purpose.
16. In view of the above undertaking by Mr.M.Venkatachalapathy, learned senior counsel appearing for respondents 1 to 3, we pass the following directions:
(i) respondents 1 to 3 shall utilise the entire area reserved for public purpose within a maximum period of six months from the date of receipt of copy of this order;
(ii) if respondents 1 to 3 could not maintain the park within the time stipulated above, the Corporation, as a custodian of public interest, shall develop the area as a Park with the cooperation of respondents 1 to 3, with whom the title and possession would continue to remain;
(iii) the Corporation shall not collect any property tax;
(iv)the Corporation shall give access to the general public including the residents of the locality; and
(v) the Corporation is at liberty to collect necessary funds from the plot owners, who purchased the plots in the impugned layout for maintenance of the park.
17. We also direct the Chief Secretary, Local Administration Department, State of Tamil Nadu to communicate the copy of this order to all the local bodies to scrupulously apply and follow the above directions to all the layouts sanctioned or to be sanctioned. If there is any change or deviation in the purpose by the land owners or by any third party, the same shall be objected to and action shall be initiated as indicated above by the local body concerned.
For the reasons aforesaid, we hold that a portion of land reserved for public purpose in a layout or in a development plan or master plan approved by the local body cannot be used for any other purpose than the one specified therein. These appeals are ordered accordingly. No costs."
(iv) After considering Sri Devi Nagar Residences Welfare Association Vs. Subbathal, reported in 2007 (3) L.W. 259, in Alamunagar Residents Welfare Association Vs. State of Tamil Nada, reported in 2010 (4) L.W. 76, this Court held as follows:-
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.
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.
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.
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.
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.
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 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."
(v) In K.Rajamani Vs. Alamunagar Residents' Welfare Association, reported in 2011 (1) CTC 257, a Division Bench of this Court, analysed the scheme of the Act threadbare and held as follows:-
6. The further contention of the learned Senior Counsel is that a citizen cannot be deprived of the right to his property by the State without following the procedure laid down under the Planning Act . Hence the learned Senior Counsel would submit that as the land belongs to the Appellants, they have every right to approach the Government for re-classification and the Government having rightly exercised its power, the same cannot be questioned by the purchasers of the plots who have no other right over the land earmarked for public purpose except to the extent of land purchased by them. He would submit that as against the open space earmarked for public purpose in the apartments, where the purchaser of the apartment would have an undivided share in the open space as well, such right will not be available to them in the case of a layout. Hence the Residents' Association cannot question the order of the Government directing the change in the usage of the land.
7. Mr. M. Dhandapani, learned Special Government Pleader appearing for the Respondent-State would submit that as the Government has the power to alter, amend or change the use of the land under the provisions of the Tamil Nadu Town and Country Planning Act, the Government Order directing the change in the use of the land is well within such power and cannot be questioned by the Association. The learned Special Government Pleader would further submit that the decision of the Government is also binding on the Municipal Corporation.
10. We have carefully considered the above submissions. The following questions arise for our consideration:
(i) Whether the Government would have power to order de-reservation of a land reserved for public purpose in a layout for use of other purpose?
(ii) Whether the open space earmarked in a layout for use of park, etc., could be allowed to be put in use for any other purpose?
(iii) Whether the provisions of the Land Acquisition Act are to be followed for acquiring that land with reference to the provisions of Section 36 of the Planning Act?
(iv) Whether the open space earmarked in a layout could be considered to be the property of the Municipal Corporation either in the absence of any declaration under Section 37 or in the absence of any gift by the owner?
11. Point No.(i): Before we delve upon the provisions of the Tamil Nadu Town and Country Planning Act, 1971, we may briefly refer to the object behind the enactment. Green space is an essential feature in any development, as it not only serves as lung space but also meets the communal and recreational requirements of the inhabitants. The reserved space is primarily meant for the use of the occupants in any development. The residents or purchasers of the plots are also obligated to maintain the same as reserved space, namely, park, etc. Conservation of such open space becomes more required, as the lands in cities become more scarce, population increase and infrastructure strain stimulate inhabitants demands. Open space element is also a part of general development. In that sense, land use planning is a process by which the land is allocated to secure the rational and orderly development of land in an environmentally sound manner to ensure the creation of sustainable human settlements. The development control function cannot and should not operate in a vacuum. The process of land use planning primarily consists of the two twin functions of the development/land use planning and development control.
After considering the provisions of the Tamil Nadu Town and Country Planning Act, threadbare, this Court further held that,
16. A reading of the above provisions shows that if large extent of land is acquired by the Government on the basis of the proposal of the Regional Planning Authority and subsequently the master plan authority and new Town Development Authority for commercial, residential, industrial, etc., zone, those lands should not be put to use for any other purpose except to the extent of variation, revocation, modification under Section 32 of the Act. But once the land is acquired under Section 36 and is placed at the disposal of the new Town Development Authority for further disposal to such person, the proposal of the Regional Planning Authority for new town development and approved by the Government cannot be varied, revoked or modified by the Government.
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 v. 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. Chetna 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 , 2002 (5) CTC 729 : 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.
22. The contention of Mr. K.M. Vijayan, learned Senior Counsel for the Appellants is that the law relating to open space would be available only in case of apartments, where the purchaser of an apartment would have right to seek for maintenance of public space as such, as he/she has an undivided share in the open land as well and that law is not applicable to a layout. In our opinion, the said contention is totally on a misconception. The purpose for leaving open space is not only to meet the future developmental activity, but also to meet the recreational activity of the inhabitants. The provision of open space in a development plan is to provide green space as well which is an essential feature in the development of an area. In a layout leaving of certain area of land as open space for use of park is in conformity with the Development Control Rules. Hence, there cannot be a different yardstick as to the de-reservation of land left for open space in the case of an apartment and layout. Only in this context, the provisions of Section 432(10)(b) of the Coimbatore City Municipal Corporation Act relating to the power of the Municipal Corporation to make bye-laws in respect of protection of avenues, trees, grass, other appurtenances of public streets and other places was referred to by the learned Judge which, in our considered view, requires no interference. Hence, the learned Judge has rightly quashed the order of the Government in de-reserving the land earmarked for public purpose in the layout into housing plots and we are not inclined to interfere with the same. We answer the point No.(ii) accordingly.
23. Point Nos.(iii) & (iv): The next contention is as to whether in the absence of any proceedings under the Land Acquisition Act, the Municipal Corporation can claim a right over the property. The contention of Mr. K.M. Vijayan, learned Senior Counsel is that after the land is deemed to be the land needed for public purpose within the meaning of Land Acquisition Act in terms of Section 36, a declaration in this regard should be made under Section 37. In the event no declaration is made within a period of three years after the publication of notice in the Gazette as to the preparation of regional plan, master plan or the new town development plan, as the case may be, the land shall be deemed to be released from such reservation, allotment or designation under Section 38 of the Planning Act. In terms of Section 26, notice of preparation of regional plan, master plan or the new town development plan should be published in the Government Gazette after the appropriate Planning Authority had received the consent of the Government under sub-section (2) of Section 24. Thereafter, the Government is competent to acquire the land under the provisions of the Land Acquisition Act as contemplated under Section 36 and for that purpose, a notice shall be also published in the Tamil Nadu Government Gazette under Section 37. In the event such notice is not made within a period of three years from the publication of notice under Section 26 or 27, the land shall be deemed to be released from such reservation, allotment or designation. This contention would be available to a land owner before he/she makes an Application for approval of the layout plan as to the entitlement of a land owner for release of such land for non-compliance of the provisions of Sections 26, 27, 37 and 38 of the Planning Act. In this context, we may refer to the judgment of the Apex Court in Balakrishna H. Sawant and others v. Sangli Miraj & Kupwad City Municipal Corporation and others , 2005 (3) SCC 61. In that case, certain lands were reserved for high school and playground in a development plan. The concerned Municipal Corporation did not offer sufficient financial resources to construct the school and playground on the land and therefore the Municipal Corporation did not take action. In the meantime, the Government also took a stand that the reservation had lapsed and in that circumstance, the Apex Court had directed the release of the land. The above judgment was quoted with approval in Raju S. Jethmalani and others v. State of Maharashtra and others , 2005 (11) SCC 222, relating to the power of the Government for de-reservation. In both the judgments, the power of the Government for de-reservation has been upheld prior to the stage of approval of the layout and not afterwards. It is one thing to say that the land should be released to the owner and another thing to say to change the use of the said land. In this case, the question is whether after the layout has been approved showing certain extent of land to be used as park, etc., whether it could be de-reserved for the use of housing plots by an order of the Government. The Government's power to de-reserve the land is not available after the layout plan is approved, except as per the provisions of Section 90, which confers power on the Government only in respect of legality or correctness of the layout plan and not in respect of power to change the usage of the land as shown in the layout. Therefore, the contention of the learned Senior Counsel that in view of non-compliance of the provisions of the Land Acquisition Act, the land in question shall be deemed to have been released cannot be accepted on the facts of this case. Equally, we also hold that in the absence of acquisition of land in terms of Sections 36, 37, 38 of the Planning Act, the Municipal Corporation cannot claim right over the land, as the right of the owner cannot be deprived except following the above procedure. We may also mention that the owner of the land has not executed any gift deed as well in respect of the open space in favour of the Municipal Corporation, thereby the Corporation could claim a right over the land for all legal purposes.
24. This takes us to the next question as to whether in the absence of any declaration under Section 37 and the consequential release of the land under Section 38, the Municipal Corporation could claim ownership of the land on the basis of the resolution. The resolution questioned by the Appellants does not speak of the right of the Municipal Corporation for ownership, but it only speaks for taking over possession of the land. That resolution, in our opinion, could only be read for taking over possession of the open space by the Municipal Corporation in order to maintain as park, etc., as per the layout plan and not for conferring title on the Municipal Corporation. Hence, the validity of the resolution is of no consequence on the facts of this case. In Pt. Chet Ram Vashist v. Municipal Corporation of Delhi , 1995 (1) SCC 47, the Apex Court has directed that the Corporation shall have the right to manage the land which was earmarked for school, park etc., and 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 and it is left open to the Corporation to get the land transferred in its favour after paying the market price as prevalent on the date when the sanction to the layout plan was accorded. Placing reliance on the above judgment, the learned Judge has found that the Municipal Corporation would be only the custodian of the land and cannot claim to be the owner. The custodian of the land is only for the purpose of maintaining the open space and to put to use the purpose for which it was earmarked and for the benefit of the inhabitants. Hence, the learned Judge rightly did not interfere with the resolution and found that the Municipal Corporation is only the custodian of the open space. In our view, the said finding requires no interference. Accordingly, point Nos.(iii) & (iv) are answered.
(vi) In Machavarapu Srinivasa Rao Vs. Vijayawada, Guntur, Tenali, Mangalagiri Urban Development Authority, reported in 2011 (12) SCC 154, the Supreme Court again elaborately considered the importance of protection of places earmarked for park, roads and other public utilities.
(vii) In S.Amudha Vs. District Collector, Cuddalore and others, reported in 2012(5) MLJ 131, a resident of Neyveli sought for a mandamus, directing the respondents therein, to demolish all constructions put up in the plots reserved for parks in a Layout, approved by the Director, Town and Country Planning, Chennai and to maintain the same as a park. In the reported case, the land (184 plots) were approved, with a open space, earmarked for a park. As regards the constructions, the Dy. Director of Town and Country Planning filed a counter affidavit, wherein at paragraph No.4, he has stated as follows
"4..... It is necessary to state that the present status of the Park. I that on the northern side of the park.I basement for petty shops had been constructed for a height of 1 ft. Three blocks measuring 30 m x 6 m with height of 0.6 m(2 ft.) constructed using hollow blocks exist on ground. There is no superstructure or any other roof on the above blocks. This construction is in damaged condition in which automatically entire structure will be demolished within 2 years. On the western side of the park, there is a Wall made of Hollow blocks measuring 9 m x 0.23 m x 1.4 m in damaged condition. There is no encroachment on the park site other than mentioned above. It is further stated that the park.II is being maintained as park. The park has been developed with an estimate of Rs. 42,000/- under the Anaithu Grama Anna Marumalarchi Thittam (AGAMT 2010-2011) Vadakuthu village Panchayat, Kurinchipadi Panchayat Union, Cuddalore District. It is further stated that the Park.III is being maintained as Park. There is no encroachment in the park.III which is still vacant."
On the basis of the above, this Court, proceeded to hold as follows at paragraph Nos.3 and 4.
"3. Therefore, the contention of the petitioner that some constructions have come up in the open space reserved under the Open Space Regulation is clearly stands proved. Since the third respondent has not filed any counter to explain their stand, this Court will have to proceed on the basis of the averment made by the petitioner and agreed to by the second respondent. Once it is held that the space has to be kept as an open space under the Open Space Regulations, then necessarily even if there are any structures which are in damaged condition, that will have to be demolished, so that the space shall be kept as an open space.
4. Hence the writ petition will stand allowed. The third respondent panchayat is hereby directed to demolish all damaged structures as set out in paragraph 4 of the counter affidavit filed by the second respondent within a period of eight weeks from the date of receipt of copy of this order and report compliance to this Court. Subsequent to the demolition, the space will have to be kept as an open space and shall not be allowed to encroach by any person including by the third respondent. However, the parties are allowed to bear their own costs. Consequently, connected miscellaneous petition stands closed."
14. Pleadings disclose that Tamilnadu Housing Board has acquired lands in large scale for execution of housing schemes in and around Hosur. One such scheme was New A.S.T.C. Hudco Scheme and that the area developed, has been named, as "Avvai Nagar". The developed plots in the said Avvai Nagar are LIG plots. The petitioner has been allotted Low Income Group house plot bearing No.261 in New A.S.T.C. Hudco scheme, vide proceedings No.R5/11801/90 dated Nil.10.1990. On receipt of the entire cost, sale deed has been executed on 02.02.2001 by the 2nd respondent. The 3rd respondent has also been allotted a plot under the same scheme.
15. It is well known that when the housing board or any statutory body, proposes to develop and allot plots under housing schemes, they have to make provisions for the basic amenities, public utilities, streets, roads and parks etc. In the case on hand, it is the contention of the petitioner that as per the plan sanctioned by the Director of Town and Country Planning, Chennai, Plot No.290-A (S.No.326/1) has been earmarked for a park. According to the petitioner, the above said plot is situated opposite to the petitioner's plot bearing No.261 and in between his plot and the place earmarked for the park, there is a 9 meters road.
16. It is the further contention of the petitioner that after the development of the area and construction of the houses, i.e., on 13.06.1996 onwards, all the streets, park and public amenities areas have been vested with Hosur Municipality, Hosur, Dharmapuri District, the 1st respondent and that it is the duty of the 1st respondent to maintain the park and other amenities without any encroachment. The learned counsel for the Housing Board, has admitted that the entire lands developed under the scheme, have been vested with the municipality and therefore, it is the duty of the municipality to maintain the streets, parks, roads and such other public utilities, as per the plan approved by the Director of Town and Country Planning, Chennai and he shall not allow any encroachments on the lands, vested with the municipality.
17. Per contra, it is the case of the 3rd respondent that though, plot No.290-A in Survey No.326/1, was earmarked for a park, no such park was created either, by the public or by Hosur Municipality. According to him, there was a small temple (Thatched Shed) by name 'Puttru Mariamman' put up by the public, even prior to earmarking of the disputed place, by the Board, for park and that the temple has been subsequently developed by the public. A small construction measuring 200 sq.ft (4x4.6 meters) was put up for public worship and that the construction was over in the year 1994, and since then, people are worshipping the deity.
18. Thus, it could be seen from the pleadings, it is an indisputable fact that Plot No.290-A (S.No.326/1) has been earmarked for park, under the Housing Scheme. It is the case of the Housing Board, the 2nd respondent that after developing the land and plotting out the same, it has vested with Hosur Municipality, Dharmapuri District. Public amenities and utilities, such as park, streets, roads, earmarked under the scheme, cannot be encroached upon by any person and that conversion of the land for any other purpose is not permissible even by the local body on its own. It should be borne in mind that the plan for the scheme has been approved by the Director of Town and Country planning, Chennai, and therefore, without their approval, no changes can be made, regarding the utility of any portion, earmarked for the public.
19. Though, the 3rd respondent has contended that no park has been created either by the public or by the 1st respondent, and that public of the locality have come forward to put up the construction in the year 1994, i.e., four years after the issuance of an allotment order to the petitioner, vide order No.R5/11801/90 dated Nil.10.1990 and allotment of plots to others, inaction on the part of the official respondents, in not converting the place as a park would not confer any right on the 3rd respondent or any other person, to encroach upon the reserved area, and convert the same into a temple or for any other purpose. Any Such conversion, by any one of the allotees under the scheme, or even the General public, would amount to contravention of the plan sanctioned by the Director of Town and Country planning, Chennai. It is not known as to how the public authorities can recognize a construction on the encroached land without proper verification, as to the ownership of the property claimed to be a trust property, contrary to the purpose, for which, the land has been earmarked.
20. Encroaching upon a place earmarked for public amenities streets and parks, etc., is an illegality and that the same cannot be allowed to be continued, just because, the said place has been converted into a place of worship, by any person or even the general public. Pleadings disclose that after the construction of the temple, a public trust is stated to have been formed and registered on 31.05.2001, in which the 3rd respondent has become a trustee as well as an Archagar of the temple. Thus, it could be seen that on a public place earmarked for a park, there has been an encroachment and that the 3rd respondent has now become a trustee of the temple, and consequently, claiming rights.
21. Though, the 3rd respondent has contended that it is the caste difference and the personal enmity between the petitioner and the 3rd respondent, have given rise to the filing of the present writ petition and that the present writ petition has been filed at the instance of Mr.M.Sundaram, who is the unsuccessful petitioner in W.P.No.1632 of 2002, the contentions cannot be countenanced, for the reason, that there are no materials to substantiate the same.
22. In any event, what is relevant to be considered in the present writ petition is whether the petitioner, who is an allottee under the housing board scheme has got a right to enjoy the public amenities such as streets, parks, roads and such other utilities provided under the plan sanctioned by the Director of Town and Country Planning, Chennai and whether the land earmarked for a park can be encroached upon by another allottee and later on, converted as a temple and claim protection or immunity from the provisions of the statute, enabling removal of encroachment.
23. Merely, because no park was created by the 1st respondent that does not mean that a vacant land, under the scheme can be encroached upon by an allottee or any other person, to alter or convert the purpose, for which, the land has been earmarked. Construction of a temple measuring 200 sq.ft, has been admitted. On a land earmarked for the usage of all the allotees, the 3rd respondent or any other person for the matter, cannot claim any individual right. Creation of a trust and declaring himself as a trustee and archagar for the temple, itself shows that possessory rights are sought to be created on the basis of existence of a temple and further improvement, by way of construction in the year 1994, four years after the allotment orders.
24. Though, the 3rd respondent has denied that no loud speakers have been used and the existence of a small temple has not affected the education of the children, what is necessary to be considered is whether an encroachment upon an earmarked area can be permitted to be continued and whether there is a failure on the part of the respondents 1 and 2 in maintaining the public amenities, such as street, park, road, etc., earmarked at the time of approving the plan by the Director of Town and Country Planning, Chennai. Once, the land has been developed into housing plots and thereafter, vested with Hosur Municipality, it is the duty of the Commissioner of the said municipality to maintain, street, road, park and such other public amenities, without any encroachment. If any encroachment is allowed to continue by the competent authorities, then it would amount to perpetuating an illegality. Then, those who have muscle power or money or influence, can easily convert any earmarked area, as temple or for any other purpose and squat over the same and thereafter, claim immunity from encroachment laws or seek for regularisation of the usage of land on behalf of the general public and also contend that the construction put up on the said land should not be removed.
25. The further contention of the petitioner that there are temples in Phase No.8 of the Tamilnadu Housing Board Scheme and that there is no objection from any quarters for removal of such temples, is also not relevant for adjudication of the lis between the petitioner and the 3rd respondent. If there is any encroachment of lands meant for public amenities, street, road, park and any other reserved areas, under the housing scheme, it is for the 1st respondent to take appropriate action. Merely because, there are temples in other places earmarked for public amenities, under the Scheme, the present temple measuring 200 sq.ft., put up at plot No.290-A (S.No.326/1), put up on the reserved place for park, has to be allowed to be continued, is an untenable submission. Encroachments cannot be legalised whether it be a temple or church or mosque, in a public place earmarked for a specific purpose under the sanctioned plan of Director of Town and Country Planning, Chennai. The judgments stated supra, are squarely applicable to the case on hand.
26. On the facts and circumstances of the case, this Court is of the view that the petitioner has not made out a case of infringement of his legal right to use the place earmarked for park. In the light of the above, this Court is inclined to issue a mandamus to remove the encroachment in accordance with law. Mandamus is issued as indicated above. The writ petition is allowed. No costs. Consequently, the connected Miscellaneous Petition is closed.