IN THE HIGH COURT OF JUDICATURE AT MADRAS DATE : 23.01.2008 CORAM THE HONOURABLE MR. JUSTICE S.J.MUKHOPADHAYA AND THE HONOURABLE MR. JUSTICE M.VENUGOPAL W.P. NO. 4748 OF 2006 Narayanasamy Nagar Residential Welfare Association, rep. by its President, R.Ponnusamy 16, Narayanasamy Nagar Gandhi Nagar Post Tirupur 641 603 Coimbatore District. .. Petitioner - Vs - 1. The Commissioner Tirupur Municipality Tirupur, Coimbatore District. 2. The Town Planning Officer Tirupur Municipality Tirupur, Coimbatore District. 3. Senior Deputy Director of Town & Country Planning, Corporation Building, Sivananda Colony Coimbatore. 4. S.Krishnasamy 5. S.Kaveriammal .. Respondents Writ Petition filed for the issuance of a writ of mandamus directing the 1st respondent herein to take appropriate steps to protect the reserved site measuring 27 cents as specified in Narayanasamy Nagar Layout Plan approval in L.P/R (CN) No.45/81 situated in S.F. No.146, 339/2 of Chettipalayam Village, Avinashi Road, Tirupur Town, from any encroachment and further issue direction to put up fence around the reserve site and display the board showing reserve site belonging to Tirupur Municipality either at its own expense or at the cost of the petitioner as stated therein. For Petitioner : Mr. P.M.Duraisamy For Respondents : Mr. G.Sankaran, Spl. G.P. for R-1 Mr. S.Gopinathan, AGP for RR-2 & 3 Mr. S.V.Jayaraman, SC, for Mr. R.Sivaprakasam for RR-4 & 5 ORDER S.J.MUKHOPADHAYA, J. This writ petition has been preferred, in public interest, for direction on respondents to take appropriate steps to protect the reserve site measuring 27 cents as specified in Narayanasamy Nagar Layout Plan approval in L.P/R (CN) No.45/81 situated in S.F. No.146, 339/2 of Chettipalayam Village, Avinashi Road, Tirupur Town, from any encroachment and further issue direction to put up fence around the reserve site and display the board showing reserve site belonging to Tirupur Municipality. 2. Counsel appearing on behalf of the petitioner submitted that the aforesaid Narayanasamy Nagar Layout was approved by the Government of Tamil Nadu and it is mandatory to allot a portion of the land, while forming house sites, for public purpose, such as forming a park or children's playground, etc. As the layout in question consists of 26 housing plots together with a reserve site for public purpose, it should be kept like that and the members of the petitioner association are entitled to enjoy such reserve site, as the ultimate ownership rests with the 1st respondent, Tirupur Municipality, District Coimbatore. 3. It is informed that the heirs of one K.Narayanasamy Gounder had executed a power of attorney in respect of the reserved site in favour of one A.S.Kandasamy and A.R.Abdul Subhan and the power of attorney holder appeared to have sold the same to one Somasundaram Chettiar. Now Somasundaram Chettiar is no more and his son, Krishnasamy is attempting to put up construction in the reserved site, but it has been spoiled by the timely intervention of the plot owners. The persons, who originally owned the land have suppressed the land and sold the reserved site. Learned counsel for the petitioner submitted that the reserved site has been approved under the layout and the property vested with Tirupur Municipality and it is the duty of Tirupur Municipality to protect the reserved sites from encroachment. It is alleged that inspite of representation preferred by petitioner association, no action has been taken by the Municipality. Counsel also relied on a Bench decision of this Court in Sri Devi Nagar Residences Welfare Association  Vs  Subbathal & Ors. reported in 2007 (3) LW 259, wherein the Court held that approval of layout is intended to secure amenity and convenience to the present and future residents in connection with letting out and use of lands. The said judgment was also relied on by learned counsel to suggest that layout was for public purpose. 4. Contesting respondents 4 and 5 have appeared and filed counter affidavit. According to them, the father of 4th respondent, i.e., husband of 5th respondent, viz., Somasundaram Chettiar purchased the land in question in the year 1982, the land in question, measuring about 6280 sq.ft. (14.5 cents) in layout formed in GS No.346, situated at Chettipalayam Village, Palladam Taluk, Tirupur Town, Ward No.4, Padmavathipuram, Narayanasamy Nagar, under registered sale deed dated 7th April, 1982, registered as document No.819/82. Ever since the deed of purchase, they are in possession and enjoyment of the same, paying land tax and all other revenue records stood in his name. Somasundaram Chettiar died on 15th Feb., 1992, leaving behind his wife, two sons and two daughters to succeed to his estate, including the respondents herein. The other brothers and sisters are in full possession and enjoyment of the aforesaid land, but they have not been impleaded as parties. The contesting respondents 4 and 5 have disputed the fact that the land owned and possessed by them is a reserved site measuring 27 cents, allotted for public purpose under house plan approval in LP/R (CN 45/81) on the file of the 3rd respondent. 5. In the counter affidavit, the 1st respondent, Commissioner, Tirupur Municipality, has taken plea that Mr.Narayana Gounder applied for house site layout in 1981 in 2.53 acres; the original layout was approved by the Senior Deputy Director of Town and Country Planning, Coimbatore, Nilgiris Region by LP/R/CN No.45/81 with 26 house sites and 7 cents as reserved site for public purpose. However, Narayana Gounder, original owner of land in SF 346 and 339/2, Chettipalayam Village, had not handed over the roads and reserved sites to the Municipality for future maintenance. If the land is handed over to the municipality for public purpose, it is stated that the same may be maintained. 6. We have heard the parties and noticed the rival contentions and judgments as referred to by the parties. 7. In a case before Supreme Court in Pt. Chet Ram Vashist  Vs  Municipal Corporation of Delhi reported in 1995 (1) SCC 47, Supreme Court noticed layout plan submitted by private colonisers, which was sanctioned by standing committee of the municipal corporation. Space was reserved in the plan for public purpose, viz., parks, school, etc. One condition was made for sanction of such plan that space so reserved shall vest in the corporation free of cost. The Supreme Court held the same illegal and invalid. The Court further held that when any site is reserved for such public purpose, corporation only gets right as a custodian to manage the same, but it cannot acquire any right, title or interest thereof. While dealing with the ownership and management, the Court further observed that public interest cannot be stretched to create a right. 8. In the present case, there is nothing on the record to suggest that the land vested with the corporation or that the land was transferred in favour of the Corporation by the owner. On the other hand, the Corporation has specifically stated that the land in question was not handed over by the owner to the Corporation. Therefore, we hold that the Corporation has not acquired any right and title or interest thereof. 9. So far as the judgment in the case of Sri Devi Nagar Residences Welfare Association (supra) is concerned, that was not a public interest litigation, but a determination made by Division Bench in an appeal preferred against an order passed under Article 226 of the Constitution of India in an adverse litigation. The present case being a public interest litigation, the petitioner cannot claim any right on the basis of layout approved only because its members are the residents of the area. In fact the preyer as made in the writ petition may amount to a litigation in personal interest of the members of the association, which cannot be granted in the present case. Further, as we find that the land in question was sold as back as in 1982 and now the question of right and title requires determination by a court of competent jurisdiction, which cannot be determined under Article 226, it is not desirable to grant any relief as sought for in the present case, though it is open to the aggrieved party to move before a court of competent jurisdiction for appropriate relief, if permissible. 10. There being no merit, the writ petition is dismissed, but there shall be no order as to costs. (S.J.M.J.) (M.V.J.) 23.01.2008 Index : Yes Internet : Yes GLN To 1. The Commissioner Tirupur Municipality Tirupur, Coimbatore District. 2. The Town Planning Officer Tirupur Municipality Tirupur, Coimbatore District. 3. Senior Deputy Director of Town & Country Planning, Corporation Building, Sivananda Colony Coimbatore. S.J.MUKHOPADHAYA, J. AND M.VENUGOPAL, J. GLN PRE-DELIVERY ORDER IN W.P. NO. 4748 OF 2006 Pronounced on 23.01.2008