IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:05.08.2011 CORAM: The HONOURABLE MR.M.Y.EQBAL THE CHIEF JUSTICE and The HONOURABLE MR. JUSTICE T.S.SIVAGNANAM W.A.No.218 to 220 of 2011 M.P.No.1 of 2011 W.A.No.218 of 2011 Artisan Residents Welfare Association, Rep. by its Secretary K.Elumalai. Plot No.PP16, Third Main Raod, Mahakavi Bharathi Nagar, Chennai - 39. ... Appellant/Petitioner Vs. 1.The Government of Tamil Nadu, Rep. by its Secretary, Housing and Urban Development Department, Fort St. George, Chennai – 600009. 2.The Chairman, Tamil nadu Housing Board, Anna Salai, Nanadanam, Chennai – 600 035. 3.The Executive Engineer and Administrative Officer (Annanagar Division), Tamil Nadu Housing Board, Thirumangalam Shopping Complex, Thirumangalam, Chennai – 600 101. 4.The Member – Secretary, Chennai Metropolitan Development Authority, Egmore, Chennai – 600 008. ... Respondents/Respondents W.A.No.219 & 220 of 2011 Artisan Residents Welfare Association, Rep. by its President, Plot No.PP16, Third Main Road, Mahakavi Bharathi Nagar, Chennai - 39. ... Appellants/Petitioner in both W.As. Vs. https://hcservices.ecourts.gov.in/hcservices/ 1.The Government of Tamil Nadu, Rep. by its Secretary, Housing and Urban Development Department, Fort St. George, Chennai – 600009. 2.The Member Secretary, Chennai Metropolitan Development Authority, Egmore, Chennai – 600 008. 3.The Chairman, Tamil nadu Housing Board, Anna Salai, Nanadanam, Chennai – 600 035. 4.The Executive Engineer and Administrative Officer (Annanagar Division), Tamil Nadu Housing Board, Thirumangalam Shopping Complex, Thirumangalam, Chennai – 600 101. ... Respondents in both W.As. COMMON PRAYER : Writ appeals filed under clause 15 of the Letter Patent against the order of this Court dated 02.02.2010 made in W.P.No.24588 of 2005, W.P.No.11248 of 2009 and W.P.No11257 of 2009. WP.No.24588 of 2005 : Petition presented under Article 226 of the Constitution of India, seeking a Writ of Mandamus directing the respondents the land morefully described below and shown in the layout plan of neighborhood Mahakavi Bharathi Nagar Scheme for the purpose for which it is earmarked under the said scheme. WP.No.11248 of 2009 : Petition filed under Article 226 of the Constitution of India seeking a Writ of declaration declaring that the revised lay out plan showing converted auditorium health centre, social welfare office public purpose (Plot 14) daily market and mini shopping centre into residential use at M.K.B.Nagar, S.No.738 pt 739 pt 742, and 743 pt of Perambur Village, Perambur, Purasawalkam Taluk, drawn by the Fourth Respondent and approved by the Second Respondent is illegal invalid and unlawful. Prayer in WP.No.11259 of 2009 : Petition under Article 226 of the Constitution of India seeking a writ of certiorarified Mandamus calling for the records pertaining to G.O.Ms.No.219 dated 20.10.2008 of Government Housing and Urban Development (UD.1)Department of the Government of Tamil Nadu and quash the same as illegal, invalid and unlawful and directing the respondents not to use the land earmarked for Public Purpose in https://hcservices.ecourts.gov.in/hcservices/ approved labour plan of the Neighborhood Mahakavi Bharathi Nagar Scheme other than the purpose of which it was earmarked. Common Schedule in all the WPs. The piece and parcel of vacant land comprised in S.Nos.743, 738 and 742 and situated in Mahakavi Bharathi Nagar shown in lay out plan of the Tamil Nadu Housing Board, North Madras, Neighborhood Scheme, Mahakavi Bharathi Nagar, Chennai - 39 bounded on North by 30 feet/13th Central Cross Road South by 60 feet Central Avenue Road East by 40 feet III Main Road, West by 30 feet II Main Road, ad measuring 67 ground situated within the Sub-Registration District of Purasawalakam and Registration District of Purasawalkam & Registration District of Chennai North. For Petitioner : Mr.A.M.Loganathan For Respondents : Mr.S.Kasikumar for K.Chelladurai for RR2&3 Mr.S.Venkatesh G.P assisted by Mr.T.N.Rajagopalan Addl. Govt. Pleader for R1 COMMON JUDGMENT THE HON'BLE CHIEF JUSTICE & T.S.SIVAGNANAM, J. Heard the learned counsels appearing for the parties. 2. These appeals are directed against the common judgment and order in W.P.No.24588 of 2005, W.P.No.11248 of 2009 and W.P.No11257 of 2009, dated 02.02.2010. 3. The appellants are the writ petitioners and they are a Residence Welfare Association. The appellant though filed four separate writ petitions, the grievance of the appellants appears to be with regard to the change of use of the lands earmarked for public purpose in the approved lay out plan of the North Madras Neighbourhood Scheme, Mahakavi Bharathi Nagar, (for short 'M.K.B. Nagar'), developed by the Tamil Nadu Housing Board. 4. In one of the writ petition's being W.P.No.11257 of 2009, the appellant, writ petitioner challenged the Government order in G.O.Ms.No.219 dated 20.10.2008, granting exemption in favour of the Tamil Nadu Housing Board for the purpose of constructing multi storied building by the Housing Board for providing housing for lower income and middle income persons. 5. The Housing Board resisted the writ petitioner's claim by contending that the area which was allotted for various public purposes were informed to the concerned departments and as the concerned departments did not come forward to use those sites for the https://hcservices.ecourts.gov.in/hcservices/ specified purposes, they were notified for public auction and yet there were no takers and therefore were converted for residential use for construction of flats, which will be allotted to the general public by draw of lots. The learned Judge by the impugned judgment and order dated 02.02.2010, dismissed the writ petitions. Aggrieved by the same, these appeals have been preferred. 6. The learned counsel appearing for the appellant submitted that the respondent Board have no right to convert the lands earmarked for public purposes in the approved lay out and therefore, their action is illegal. In support of his contention, the learned counsel relied upon the decision of the Hon'ble Supreme Court in Bangalore Medical Trust vs. B.S.Muddappa and others, 1991 (4) SCC 54, Krishna Nagar Residents Welfare Association vs. The Director of Town and Country Planning Madras and 3 others, 2001-3-L.W.828. The learned counsel further submitted that the conduct of the respondent Board in converting the land earmarked for public purpose for residential use is against the object of the statute. That the Government order in G.O.Ms.No.219, was passed without proper application of mind and without any reasons. 7. From the facts placed before this Court, it is seen that the North Madras Neighbourhood scheme that is Mahakavi Bharathi Nagar (M.K.B. Nagar) was implemented in the year 1971 and the layout was approved by the Chennai Metropolitan Development Authority (for short CMDA). The basic infrastructural facilities like roads, parks, children play area, sewage pumping station were developed and handed over to the Corporation of Chennai for maintenance and all the residential units were sold to the public as per the rules of the respondent Board. The sites earmarked for the purposes of dispensary, bus stand, police station, post office, school site etc., were handed over to the concerned departments for the respective purposes, after collecting the cost of the site. It is further stated that after allotment of all these public purpose sites, the area reserved for auditorium, health centre, social welfare office site, daily market site were lying vacant and could not be developed, due to continuous encroachment and the Board were dragged into various litigation by the encroachers. It is stated that ultimately the matter went up to the Division Bench and ended in favour of the respondent Board. It appears that a survey was conducted in the area to assess the marketability for residential and other commercial units and it was found that there are several private hospitals, government hospitals near M.K.P.Nagar and also 14 community halls, 7 cinema theaters and 400 shops are located nearby and therefore, a decision was taken that the site earmarked for auditorium, health centre, etc. may not be required for the said purposes and in the larger interest of the public and to better utilize the balance vacant land to meet the housing demand for lower income group and middle income group people and to avoid revenue loss to the Board, it was decided to convert the usage of the balance public purpose site (saleable) to residential use. This decision was approved by the Board vide resolution dated 08.12.2006 and also approved by the CMDA on 20.06.2008. Based on the approval, it was proposed to construct 472 plots (356 low income group + 116 middle income groups) in the https://hcservices.ecourts.gov.in/hcservices/ said lands and Government also granted special permission to construct multi storied building. Apart from allotment of flats to the general public, specific reservation was made in the proposed flats for Adi Dravida people, Scheduled Tribe people, Dobies, Barbers etc., 8. Thus, it is evident that the land area in question, which has now been converted from a public purpose site to residential use is not an area, which was earmarked as open space reservation or for any basic infrastructural facility such as road, park, children play area, etc. Infact the lands which have been now converted, are saleable area and cannot to be distributed free of cost. That apart, the land is to be utilized for the purpose of constructing flats for lower income and middle income group persons and also providing reservation in allotment to the depressed classes of society. As this site remained vacant, there was encroachment and the Board was dragged into litigation by the encroachers and from 1981 onwards for about 25 years till 2006, the Board contested such litigation and ultimately, only in June 2006, they were able to remove the encroachments. 9. The learned counsel for the appellant placed heavy reliance on the decision of the Hon'ble Supreme Court in the case of Bangalore Medical Trust, referred supra, and submitted that the public purpose site in M.K.B.Nagar, cannot be diverted for any purpose and the Hon'ble Supreme Court held such conversion as illegal. For the same proposition, the learned counsel also relied on the decision of this Court in Krishna Nagar Residents Welfare Association vs. The Director of Town and Country Planning Madras and 3 others, 2001 3 L.W. 828. 10. In the case of Bangalore Medical Trust, referred supra, a portion of the land, which was earmarked for park, was transferred for construction of a hospital, while considering the facts of the said case, the Hon'ble Supreme Court observed that property reserved for open space in a duly sanctioned scheme, cannot be leased or sold away, unless the scheme itself is duly altered. Any unauthorized deviation from the duly sanctioned scheme, by sacrificing the public interest in the preservation and protection of the environment by means of open space for parks and playgrounds and ventilation will be contrary to the legislative intent, and an abuse of the statutory power vested in the authorities. While interpreting the provisions of the Bangalore Development Authority Act, the Hon'ble Supreme Court rendered the decision, since, the authorities under the said Act, were not empowered to dispose of the area reserved for public park and playgrounds and other amenities. The decision rendered by this court in the case of Krishna Nagar Residents Welfare Assocation, referred supra, was also relating to a property, which was shown as a park. Therefore, the decisions relied on are clearly distinguishable on facts. Admittedly, the area which is subject matter of these appeals is not an area, which was earmarked for either a park or a playground, but was a site reserved for a public purpose such as auditorium, health centre etc. was a saleable property by the Housing https://hcservices.ecourts.gov.in/hcservices/ Board. Therefore, the decisions relied on by the learned counsel for the appellant does not lend much support to their case. 11. In Balakrishna H.Sawant and others vs. Sangli, Miraj & Kupwad City Municipal Corporation, (2005) 3 SCC 61, the appeal before the Hon'ble Supreme Court was at the instance of a land owner, who developed his land and in the final development plan, a land was reserved for high school and playground. Though, the site was reserved, the State Government did not take any steps to acquire the land for the stipulated purpose and therefore, the land owner contended that the reservation had lapsed. On these facts, the Hon'ble Supreme Court held thus:- 4. Under the Maharashtra Regional and Town Planning Act, 1966 a modification of the final development plan of a minor nature can be made by the planning authority. It also enables the State Government to direct the planning authority to make such modification, and on failure of the planning authority to carry out the direction, the State Government may itself notify the proposed modification inviting objections. It was, therefore, submitted before us that the procedural requirements of the Act are such that they are bound to take time. 5. Counsel for the Corporation states that the resolution of 20-7-2002 stands and the respondent Corporation is bound by it and holds itself bound even today, meaning thereby, that the land shown as reserved in the development plan is not required by the Municipal Corporation as it does not have the resources to develop the said land and construct a high school and playground over it. The stand of the State Government even before the High Court was that the reservation had lapsed. It is, therefore, apparent that the reservation will serve no purpose except to cause harassment to the appellant without any corresponding benefit to the respondent Corporation. Ultimately, the respondent Corporation may not take any steps to get the land acquired, and in that event, by efflux of time the reservation may again lapse. 12. As noticed above, in the case on hand, the area was within the saleable limit of the Housing Board and as a result of a survey conducted, revealed that there were no willing takers and in spite of the best efforts by the Board, there were no persons to take the said sites and the sites were encroached for nearly 25 years, the Board had been contesting the litigation initiated by the encroachers and were able to evict them only in 2006. Further, the site as per the current proposal is to be utilised for yet another public purpose for construction of flats to the lower income group and middle income group persons to be allotted to the general public and also reserving a certain percentage of flats for the socially and economically downtrodden people. Therefore, the Government order granting exemption in favour of the Housing Board for implementing such proposal by constructing multi storied flats cannot be stated to be arbitrary or without proper application of mind. Further in paragraph 14 of the impugned judgment, the learned Single judge has https://hcservices.ecourts.gov.in/hcservices/ placed on record, the various steps that have been taken by the Housing Board, before deciding to convert the site from public purpose site to residential use and for better appreciation paragraph 14 of the judgment is quoted herein below:- 14. There is no dispute that the area in question has been allotted only for the above said purposes, i.e., auditorium, health centre, social welfare office, public purpose (plot 14), daily market and Mini Shopping Centre. But at the same time, as rightly pointed out by the learned Additional Advocate General, the Housing Board has taken steps with the concerned Departments, for example, it has addressed letter dated 25.01.1987 to the Health and Family Department for health centre dispensary site, letter dated 11.01.1989 for library site, allotment order dated 01.07.1991 for nursery school site and so also for high school site, allotment order and transfer certificate dated 24.09.1988 of P & T sites, letter dated 26.10.1991 for Fire Service, letter dated 11.05.1990 for PTC bus terminus letter dated 02.06.1989 for police station, letter dated 25.01.1987 to Social Welfare Department for Social Welfare office site. Besides, the Housing Board has also issued auction notice in November 20098 for service industries, religious purposes and primary school. By these letters and also by issuing open auction notice as stated above, the area allotted for the said purposes has been brought to the notice of the concerned departments. However, it is the stand of the Housing Board that in spite of their best efforts, there were no willing takers and since nobody was willing to take the same, it was left open and the same was encroached by third parties. When this factual position is not disputed by the petitioner, it has to be held that the Housing Board has earmarked certain area for public purpose and the Housing Board has taken appropriate steps also to utilise those lands for the said purpose, but, in spite of it, the same could not be utilised for the purposes for which it was earmarked for no fault of the Housing Board. After the vacation of the encroachers, certainly the Housing Board has to take steps to avoid encroachment and to utilise the land. Consequently, a resolution has been passed and further, G.O.Ms.NO.219, Housing & Urban Development (U.D1) Department dated 20.10.2008, has also been issued. 13. For all the above reasons, we find no grounds to interfere with the order passed in the writ petitions and accordingly writ appeals fail and they are dismissed. No costs. Consequently, connected miscellaneous petition is closed. Sd/ Deputy Registrar /true copy/ Sub Asst.Registrar https://hcservices.ecourts.gov.in/hcservices/ pbn To 1.The Secretary, The Government of Tamil Nadu, Housing and Urban Development Department, Fort St. George, Chennai – 600009. 2.The Chairman, Tamil nadu Housing Board, Anna Salai, Nanadanam, Chennai – 600 035. 3.The Executive Engineer and Administrative Officer (Annanagar Division), Tamil Nadu Housing Board, Thirumangalam Shopping Complex, Thirumangalam, Chennai – 600 101. 4.The Member – Secretary, Chennai Metropolitan Development Authority, Egmore, Chennai – 600 008. 3 cc To Mr.A.M.Loganathan, Advocate, SR.48539, 48540 & 48541. W.A.Nos.218 to 220 of 2011 UG(CO) RVL 17.08.2011 https://hcservices.ecourts.gov.in/hcservices/