In the High Court of Judicature at Madras Dated: 04.01.2010 Coram The Honourable Mrs.JUSTICE CHITRA VENKATARAMAN Writ Petition Nos.23980 of 2005 & 25371 of 2002 Alamunagar Residents Welfare Association, a society registered under the Societies Registration Act, having its regn.No.131/2005, 1-A Alamu Nagar, Sathi Road, Coimbatore  641 012 rep. By its President M.Balasubramanian .... Petitioner in W.P.No.23980 of 2005 Vs. 1. State of Tamil Nadu rep. by its Secretary to Government, Municipal Administration & Water Supply Department, Fort St. George, Chennai  600 009. 2. The Special Commissioner, Town & Country Planning Department, 807, Anna Salai, Chennai  600 002. 3. Coimbatore City Municipal Corporation, rep. By its Commissioner, Coimbatore. .... Respondents in both W.Ps. 4. Smt.K.R.Rajamani 5. M.Chinna Alamu 6. R.M.Meenakshi .... Respondents in W.P.No.23980/05 & Petitioners in W.P.No.25371/02 7.V.Ramaswamy .... Respondent in W.P.No.23980/05 W.P.No.23980 of 2005: PETITION under Article 226 of The Constitution of India praying for the issuance of writ of certiorarified mandamus calling for the records relating to G.O.Ms.No.80 dated 15.2.2005 issued by the first respondent, Municipal Administration & Water Supply Department, Government of Tamil Nadu and quash the same and direct respondents 1 to 3 to retain and maintain the 51 cents in T.S.No.1278 part, left for public usage in Alamunagar Layout, Coimbatore as public park and for other public purposes. W.P.No.25371 of 2002: PETITION under Article 226 of The Constitution of India praying for the issuance of writ of certiorarified mandamus calling for the records of the respondents culminating in the third respondent's resolution No.2369 dated 27.11.1995 quash the same and further direct the respondents to forbear from initiating any action to deprive the petitioner's their rights of ownership and possession to the petitioner's property situated at T.S.No.11/1278 Alamu Nagar Coimbatore. For Petitioners in W.P.No. 25371 of 2002 and Respondents 4 to 7 in W.P.No.23980/05 : Mr.K.M.Vijayan Senior Advocate For M/s.B.Harikrishnan For Petitioner in W.P.No.23980 of 2005 : Mr.G.Rajagopalan Senior Advocate for M/s.G.R.Associates For 3rd respondent in both W.Ps. : Mr.R.Sivakumar For respondents 1 & 2 in both W.Ps. : Mrs.Malarvizhi Udayakumar Special Government Pleader ------- C O M M O N O R D E R Writ Petition No.23980 of 2005 is by the Alamu Nagar Residents Welfare Association seeking a writ of certiorarified mandamus to quash G.O.Ms.No.80 dated 15.2.2005 issued by the first respondent, namely, the State of Tamil Nadu by Secretary to Government, Municipal Administration & Water Supply Department, Government of Tamil Nadu and to direct respondents 1 to 3 to retain and maintain 51 cents in T.S.No.1278 part, left for public purpose in Alamu Nagar layout and for other public purposes. 2. W.P.No.25371 of 2002 is by respondents-4 to 6 in W.P.No. 23980 of 2005 to quash the resolution of the third respondent in Resolution No.2369 dated 27.11.1995 and to direct the respondents to forbear from initiating any action to deprive the petitioner's rights of ownership and possession of the properties situated in T.S.No.11/1278, Alamu Nagar, Coimbatore. 3. Considering the common contentions in both the writ petitions, a common order is passed taking the status of the parties as given in W.P.No.23980 of 2005. 4. The Writ Petitioners in W.P.No.23980 of 2005, hereinafter referred to as "The Association", are the purchasers of the plot in the approved layout, by name, Alamu Nagar in Sathyamalgalam Road, Coimbatore. The said layout was formed in the year 1983, approved by the statutory authorities, namely, the Deputy Director, Local Planning Authority and by the Coimbatore City Municipal Corporation. The total extent of the layout is 2.428 hectares equivalent to 6 acres. The layout consists of 54 plots and an area of 51 cents was reserved for public purpose for establishing a park and for maintaining the well. The purchasers of the various plots have put up their construction and are in enjoyment of the same. On coming to know that there were attempts to put up certain construction in the area reserved for public purpose, with a view to protect 51 cents of land reserved for public purpose, an association was formed by the purchasers under the name "Alamu Nagar Residents Welfare Association", registered on 1.6.2005. On verification of the construction activities going on in the reserved place for public purpose, the Association came to know about G.O.Ms.No.80 dated 15.2.2005, whereby, the Government had de-reserved the portion of land reserved for public purpose and converted the same as house site. The Association learnt that the said purchasers, respondents-4 to 6, who are the writ petitioners in W.P.No.25371 of 2002, had given a petition on 14.2.2005 to the Government for de-reservation of the land allotted for public purpose and the impugned proceedings was passed on 15.2.2005 permitting conversion of the area reserved for public purpose as house sites to an extent of 12,850 sq.ft. out of the total extent of 23,000 sq.ft. 5. Writ Petitioners in W.P.No.25371 of 2002/respondents-4 to 6 in W.P.No.23980 of 2005, who are the purchasers of the portion of the land under separate sale deeds dated 23.12.1991, represented by their Power Agent, respondent No.7, have questioned the Resolution dated 27.11.1995 passed by the Coimbatore City Municipal Corporation, third respondent in W.P.No.23980 of 2005, taking possession of the reserved area for public purpose under the layout sanctioned scheme. 6. Aggrieved by the conversion of the land reserved for public purpose into house sites, the Alamu Nagar Residents Welfare Association have filed the writ petition in W.P.No.23980 of 2005 challenging the Government Order stating that the same is against the sanctioned layout. It is also stated that while sanctioning the layout, the site had been earmarked for public purpose; hence the character of the land as reserved area has to be retained as it is, as the original owner holds the same as a trustee of the public cause. Consequently, the purchase of the property by respondents-4 to 6 under Sale deeds dated 23.12.1991 is void ab initio. 7. Respondents-4 to 6 in W.P.No.23980 of 2005, who are writ petitioners in W.P.No.25371 of 2002, contend that when they wanted to put up their construction in the area sold to them, they were informed by the third respondent, namely, Coimbatore City Municipal Corporation, that no permission could be granted to put up construction, unless the lands in question were de-reserved. On coming to know about certain orders passed on de-reservation in respect of certain other lands situated in Sowripalayam, Coimbatore as well as elsewhere, the petitioners made an application on 6.8.2001 to the first respondent, namely, the Government of Tamil Nadu, represented by its Secretary to Government, Municipal Administration & Water Supply, through the Town and Country Planning Department as well as the Coimbatore City Municipal Corporation for de-reserving the area. The third respondent, in his proceedings dated 5.12.2001, pointed out that while sanctioning the layout, certain lands were reserved for roads and public purposes and the roads had been handed over to the Corporation and maintained by the Coimbatore Corporation. Further, the Corporation had gone ahead with passing a Resolution on 7.11.1995 in Resolution No.2369 that the site was reserved for public purpose as land belonging to the Corporation. 8. The purchasers/respondents-4 to 6 contend that the Corporation had no authority to pass such a resolution under the Act. In the meantime, by proceedings dated 26.6.2002, the first respondent rejected the prayer for de-reservation, since the Coimbatore Municipal Corporation had passed a resolution declaring the lands as reserved for public purpose and the lands as belonging to the Corporation. Respondents-4 to 6 contend that the resolution passed is in excess of the jurisdiction of the third respondent Corporation and Section 432(10)(b) of the Coimbatore City Municipal Corporation Act does not vest any such jurisdiction to take any land. They further submit that since the Corporation cannot claim ownership of a private land except in a manner known to law, the resolution has to be quashed. 9. On notice, the respondents in the respective writ petitions have filed counter affidavit. 10. The first respondent, in its counter affidavit, stated that respondents-4 to 6 made a representation through their Power Agent as to the purchase of the land comprised in the approved layout and when the Government rejected the plea that the purchases were from the reserved area for public purpose, the said respondents presented a petition for re-consideration of the request for converting the lands earmarked for public purpose into house sites agreeing to withdraw the Writ Petition filed in W.P.No.25371 of 2002. 11. Taking into consideration the representation of respondents- 4 to 6 and on an undertaking from the respondents that they would withdraw the Writ Petition, after obtaining the opinion of the Government Pleader, High Court, Madras, the Government passed G.O.Ms.No.80, Municipal Administration and Water Supply Department dated 15.02.2005. They deny the allegation that the Government Order is passed without application of mind. The first respondent states that the order had been passed in exercise of the powers conferred on the first respondent. 12. The third respondent, Coimbatore City Municipal Corporation, in their counter affidavit, pointed out that the area in question is a reserved area for public purpose and the same was not handed over to the Corporation as per the sanctioned layout proceedings. Hence, by Resolution No.2369 dated 27.11.1995, the Corporation declared the said area as a reserved area and possession was taken over by the Corporation. The said resolution was also sent for notification in the District Gazette, which, however, due to administrative difficulties, was not followed. However, ignoring the reservation, respondents-4 to 6 took steps to put up construction. Proceedings were taken by the third respondent to stall the construction and ultimately demolition notice was issued under Section 296(3) of the Act. 13. Challenging the same, respondents-4 to 6 approached this Court in W.P.No.14327 of 1995. However, by order dated 2.8.2002, this Court dismissed the Writ Petition. A Writ Appeal was preferred by respondents-4 to 6 in Writ Appeal No.79 of 2003 and the same was dismissed for default on 03.04.2008. 14. As far as respondents 4 to 6/writ petitioners in W.P.No. 25371 of 2002 are concerned, they defended their claim based on G.O.Ms.No.80 dated 15.2.2005 that the powers to de-reserve the lands have been exercised properly after considering all the aspects. 15. Mr.K.M.Vijayan, learned senior counsel appearing for the purchasers/respondents 4 to 6/petitioners in W.P.No.25371 of 2002, submitted that with the passing of the Government Order in favour of respondents-4 to 6/writ petitioners in W.P.No.25371 of 2002, technically the resolution of the third respondent herein does not survive any longer, and hence the writ petition filed by these respondents have to be allowed. However, considering the writ petition of the Association, the claim of the respondents in W.P.No.25371 of 2002 merited to be considered. He pointed out that considering Sections 36 and 37 of the Tamil Nadu Town and Country Planning Act, 1971, any land required, reserved or designated for public purpose shall be deemed to be the land reserved for public purpose within the meaning of the Land Acquisition Act. Unless the authorities adopt the procedure under the Land Acquisition Act, the question of any land considered as transferred to the Corporation as for public purpose does not arise. He submitted that even in the case of approval of the layout, the third respondent has to follow the procedure laid down under Sections 36 and 37 of the Tamil Nadu Town and Country Planning Act, 1971. He further pointed out that as per Sub Section (2) of Section 37 of the Act, a declaration under Section 6 of the Land Acquisition Act covered by the notice under Sections 26 and 27 of the Town and Country Planning Act has to be made within a period of 3 years from the date of such notice. Under Section 38 of the Tamil Nadu Town and Country Planning Act, 1971, if no declaration is published within the time limit of three years in respect of the land reserved, allotted or designated for any purpose specified in the regional plan, master plan, detailed development plan or new town development plan, such land shall be deemed to be released from such reservation, allotment or designation. He placed reliance on the decision of the Apex Court reported in (1995) 1 SCC 47 (PT.Chet Ram Vashist Vs Municipal Corporation of Delhi) that the reservation of a land for any public purpose leading to deprivation of a right or interest in any land by the State requires that the State has to observe the rule of law. In the absence of observance of the due process of law, the resolution of the third respondent, to insist on the owner to hand over the reserved land to the Coimbatore City Municipal Corporation under a gift deed, is illegal and is in excess of its jurisdiction. Pointing out to the provisions of Section 432(10)(b) of the Coimbatore City Municipal Corporation Act, learned senior counsel contended that the provisions of the Act do not empower the third respondent to declare the private land as the property of the Coimbatore City Municipal Corporation Act. Consequently, no order could be passed to deprive the rights of the petitioner to the land in question. Learned senior counsel further referred to the decision reported in AIR 1995 SC 430 (PT.Chet Ram Vashist Vs Municipal Corporation of Delhi) that while approving the layout, imposition of a condition that a particular area of the land shall be reserved for public purpose and be donated to the local body is illegal. He made specific reference to the decision reported in (2005) 11 SCC 222 (Raju S. Jethmalani and Ors.Vs. State of Maharashtra and Ors.) that when the Corporation had failed to acquire the land within the time frame prescribed under Section 38 of the Act, the purpose thus no longer there, the petitioner could not be deprived of the use of the land for residential purpose. Contending that a citizen cannot be deprived of his rights to his property when the State had not followed the procedure laid down under the Tamil Nadu Town and Country Planning Act, he placed reliance on the decision reported in (2005) 5 SCC 61 (Bombay Dyeing and Manufacturing Co. Ltd. Vs. Bombay Environmental Action Group and Ors.). Learned senior counsel also referred to the decision reported in (2009) 7 MLJ 653 (Bagyam V. Commr., Coimbatore City Municipal Corpn.) as well as (2007) 3 MLJ 647 (Casa Grande Private Limited, rep. by its Director M. Arun Kumar Vs. Chennai Metropolitan Development Authority (CMDA), rep. by its Member Secretary) that when the statutory procedures are not followed, the resolution is contrary to the Tamil Nadu Town and Country Planning Act and the Development Control Rules. 16. Per contra Mr.G.Rajagopalan, learned senior counsel appearing for the Association/petitioners in W.P.No.23980 of 2005, challenging the order of the Government on re-classification, pointed out that the impugned order had been made by way of review of the earlier order rejecting the land owner's plea for re-classification. Once the layout has been sanctioned subject to certain conditions, particularly with reference to reserving an extent of land for public purpose, the Government has no authority to re-classify the land, thereby, releasing it from the original purpose. He referred to the decision reported in (2002) 3 MLJ 375 Villupuram Municipality, rep. by its Commissioner, Villupuram Vs. M. Subramanian and others) as well as 2007-3-L.W.259 (Sri Devi Nagar Residences Welfare Association V. Subbathal) that an area reserved for a public purpose cannot be undone by the Government under the provisions of the Act. He also referred to the decision reported in (2007) 4 MLJ 1006 (Karpaga Nagar Nala Urimai Sangam Vs. Municipal Administration and Water Supply Department) wherein, dealing with the scope of the Tamil Nadu Town and Country Planning Act and the Corporation Act, this Court held that the Tamil Nadu Town and Country Planning Act and the Corporation Act have to be read together and not in derogation of each other that while the Corporation Act provides for the obligations of the owners to provide sites reserving the same as common for the purpose of the Tamil Nadu Town and Country Planning Act, on a mere non- compliance of the provisions of Section 26, 27 and 38 of the Tamil Nadu Town and Country Planning Act, there is no release of the particular area reserved as one for public purpose. He pointed out that the need to maintain the reserved plots as per the layout approval order is not a mere formality. He pointed out to G.O.Ms.No.170 dated 1.12.2000 which gives a specific direction that an area reserved for public purpose would not go for sale to be registered for private individuals. In the context of the approval to the layout granted, the resolutions as to the user of the land is a permanent one and cannot be changed vide (2006) 1 MLJ 181 (The Chairman, Madras Metropolitan Development Authority Vs. S. Radhakrishnan and Ors.). In any event, once an approval of the layout has been granted subject to reserving the area as for public purpose and the owner had also reserved the same and rightly the petition preferred by the purchasers/respondents 4 to 6 was rejected, there cannot be a further review of the same. He pointed out that Section 81 of the Tamil Nadu Town and Country Planning Act provides for a review of an order passed under Sections 76 to 78 and 80 of the Tamil Nadu Town and Country Planning Act. The order passed by the Government being one under Section 79 of the Tamil Nadu Town and Country Planning Act is not amenable to the review provisions. Referring to Section 48 of the Tamil Nadu Town and Country Planning Act, learned senior counsel submitted that respondents-4 to 6 do not have any authority to deal with the reserved area and no person other than the State Government or the Central Government or a local authority shall erect a building in or over any land or make any material change in the use of the land or construct, except with the written permission of the appropriate authority. In the background of the said provisions and the facts, learned senior counsel pointed out that while granting the layout, once a land is reserved for a public purpose and the purchasers of the layout plots have been assured of the reservation, the respondents are estopped from making any material change in the sanctioned scheme of the layout and the same is legally binding on the respondents. The Corporation as well as the respondents have to maintain the land reserved for public purpose under trust for the other owners of the laid out plots. Consequently, any change in the character of the land reserved for public purpose would amount to violation of the contractual terms. In the above circumstances, the order passed by the Government in G.O.Ms.No.80 dated 15.2.2005, unilaterally changing the purpose, is in violation of the conditions of purchase; hence liable to be quashed. He pointed out that the purchase by respondents-4 to 6 are not valid in law. Having regard to the sanctioned layout, they are bound to return the land reserved for public purpose as a trustee of the property, the land being common to all the land owners for their enjoyment. 17. The Corporation, the third respondent herein, has filed a counter affidavit, wherein, it is pointed out that the area reserved for public purpose was purchased by five persons including respondents-4 to 6. Of the 5 persons, two persons by name S.K.Venkatachalam and V.Meenakshi (6th respondent) started construction without even submitting their building application under Section 272 of the Coimbatore City Municipal Corporation Act. When they were proceeded with a notice to stop construction, the same was ignored. The demolition notice was issued under Section 296(3) by the Coimbatore City Municipal Corporation Act. Challenging the same, a writ petition was filed in W.P.No.14327 of 1995. By judgment dated 02.08.2002, this Court dismissed the writ petition upholding the stand of the respondent-Corporation to demolish the unauthorised construction. As against the said order, a writ appeal was filed in W.A.No.79 of 2003 and the same was dismissed for default on 03.04.2008. Three persons, namely respondents-4 to 6, who had not originally filed any writ petition, later on filed writ petition in W.P.No.25371 of 2002, challenging the resolution No.2369 dated 27.11.1995. The Corporation pointed out that these respondents' request for re- classification was originally rejected under G.O.Ms.No.231 dated 26.6.2002. On the review of the same, the Welfare Association has preferred writ petition in W.P.No.23980 of 2005. 18. Learned counsel appearing for the Coimbatore Corporation pointed out that once the area has been reserved for common purpose while sanctioning the layout plan, Section 250(2) of the Coimbatore City Municipal Corporation Act alone will have relevance for consideration. Consequently, no exception could be taken to the resolution of the Corporation. 19. Learned Special Government Pleader appearing for the first respondent in W.P.No.23980 of 2005, reiterating the contentions in the counter affidavit, defended the review order of the Government that even though the resolution of the third respondent dated 27.11.1995 is not published in the Gazette, yet, the sanction of the layout cannot be denied. She pointed out that the petitioner in W.P.No.25371 of 2002, the original owner, is a defaulter in not handing over the land to the Corporation within six months, as had been ordered in the sanctioned layout order. She pointed out to G.O.Ms.No.231 dated 21.6.2002 and to the District Gazette as well as the TSLR Register that the land in question is described as "bghJ ,lk;". She referred to the decision reported in (2007) 3 MLJ 990 (Sri Devi Nagar Residences Welfare Association Vs. Subbathal and others) that the land once reserved for public purpose cannot be changed. Yet, considering the subsequent Government Order passed, based on the Government Pleader's opinion, the request of respondents-4 to 6 were considered. 20. Countering the arguments made by the petitioner, Mr.K.M.Vijayan, learned senior counsel appearing for respondents-4 to 6, pointed out to the counter affidavit filed by the Government that admittedly there was no vesting of the land reserved for a common purpose. He reiterated that there cannot be a gift of a land reserved for a public purpose other than for roads. Even then, an executive direction to deprive a person of his right to property is contrary to Article 300-A of the Constitution of India. The source of power for an approval remaining with the Tamil Nadu Town and Country Planning authorities, the local bodies do not have the authority at all to insist on any land to be reserved and that too, to be given by way of a gift deed. Pointing out to the provisions of the Act, particularly Sections 11, 15, 30 and 38, he submitted that the decision reported in (2009) 7 MLJ 653 (Bagyam V. Commr., Coimbatore City Municipal Corpn.), and (2007) 4 MLJ 1006 (Karpaga Nagar Nala Urimai Sangam Vs. Municipal Administration and Water Supply Department) have not considered the effect of Sections 36 and 38 of the Tamil Nadu Town and Country Planning Act and hence cannot be considered as having any relevance to the case on hand. In the face of the decisions of the Apex Court reported in (1995) 1 SCC 47 (PT.Chet Ram Vashist Vs Municipal Corporation of Delhi), (2005) 11 SCC 222 (Raju S. Jethmalani and Ors.Vs. State of Maharashtra and Ors.) and (2005) 5 SCC 61 )Bombay Dyeing and Manufacturing Co. Ltd. Vs. Bombay Environmental Action Group and Ors.), unless and until the reservation has ultimately culminated in a proceedings under the Land Acquisition Act as prescribed under Sections 37 and 38 of the Tamil Nadu Town and Country Planning Act, the character of the land in question is amenable for re-classification. Consequently, he submitted that no exception could be taken to the Government Order passed; and the resolution of the Corporation, hence, has to be struck down by this Court. 21. Going by the decisions of the Apex Court as to the rights of the Corporation and the