IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 22.06.2010 CORAM THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.NO.722 of 2008 and M.P.NOs.1 and 3 of 2008 M/s.Apeejay Surendra Park Hotels Ltd., 601, Anna Salai, Chennai-600 002. rep. By its Authorised Signatory .. Petitioner Vs. 1.State of Tamil Nadu, rep. By the Secretary to Government, Housing and Urban Development Department, Secretariat, Fort St George, Chennai-600 090. 2.The Corporation of Chennai, rep. By its Commissioner, Ripon Building, Chennai-600 003. 3.The Zonal Officer, Corporation of Chennai, Nungambakkam Zone, Chennai-600 034. 4.The Chennai Metropolitan Development Authority, rep. By its Member Secretary, Gandhi Irwin Road, Egmore, Chennai-600 008. (R4 impleaded as per order dt.7.3.08 in MP No.2 of 2008 in W.P.No.722/08) .. Respondents This writ petition is preferred under Article 226 of the Constitution of India praying for the issue of a writ of mandamus to forbear the respondents, their officers, employees, subordinates agents or any othe person claiming or acting under them from in any manner seeking to interfere with the petitioner's possession of the property situated at No.601, Anna Salai, Chennai-600 002 and refrain from seeking to take over any land on the basis that it is Open Space Reserved land without following the due process of law. https://hcservices.ecourts.gov.in/hcservices/ For Petitioner : Mr.R.Krishnamurthy, SC for MrSatish Parasaran For Respondents : Mr.R.Neelakandan, GA for R1 Mr.S.Ramasamy, Addl. AG for Mr.V.Bharathidasan for RR2 and 3 Mr.C.Kathiravan for R4 ORDER This writ petition is filed by the petitioner Company seeking for a direction to forbear the respondents from interfering with the petitioner's possession of the property situated at No.601, Anna Salai, Chennai-600 002 and to refrain from taking over any land on the premise that the land was a Open Space Reserved land (OSR land without following due process of law. 2.Till date the writ petition was not admitted. But, however, an order of status quo was granted on 7.1.2008. The said order came to be extended from time to time vide orders dated 21.1.2008, 28.1.2008 12.2.2008, 20.2.2008, 5.3.2008, 13.6.2008 and finally on 22.12.2008 On that day, this court posted the matter after Christmas vacation During the pendency of the writ petition, the petitioner took out an application in M.P.No.2 of 2008 to implead the Chennai Metropolitan Development Corporation (CMDA). The said application was ordered on 7.3.2008. On notice from this court, the second respondent Corporation of Chennai has filed a counter affidavit, dated 5.2.2008 During the pendency of the writ petition, one A.Manohar Prasad claimed to be the Joint Managing Director of M/s.Gemini Industrie and Imaging Limited filed an application in M.P.No.3 of 2008 seeking to get himself impleaded as the fifth respondent in the writ petition. No order was passed on that M.P. Even otherwise, there wa no necessity to implead the said person, since no relief is claimed against the said person. Hence, M.P.No.3 of 2008 will stand dismissed. 3.It is the claim of the petitioner Company that they are having chain of hotels throughout the country. Their hotel at Chennai is situated in the land originally belonged to Gemini Studios. The erstwhile owners of the land had put up several constructions in the land which is bounded by five roads, i.e. Nungambakkam High Road Kodambakkam High Road, Anna Salai, G.N.Chetty Road and Cathedral Garden Road. The structures which were put up included shopping complex, commercial complex, residential flats, etc. The structure where the petitioner's hotel is situated was originally earmarked a an office-cum-shopping complex. It was owned by an entity called Gemini Hotels and Holdings Limited. The said entity decided to obtain planning permission and put up a hotel. The lands were purchased by various sale deeds. They measured to an extent of 27.128 grounds Since the said Company was financially not sound, they sold the https://hcservices.ecourts.gov.in/hcservices/ project to the petitioner along with the land in August, 2000. 4.It was claimed that the petitioner's building was classified as a Special building under Rule 19(b) of the Development Control Rules (DCR). It related to providing for an Open Space Reservation (OSR). The DCR requires lands to be earmarked for communcal and recreation purpose. If the extent of land to be developed does not exceed 3000 square metres, then there is no reservation provided for In between 3000 sq.m and 10000 sq.m, 10% of the area excluding roads or in alternative, the developer should pay the market value of the equivalent land excluding the first 3000 sq.m. as per the valuation made by the Registration department. It is only in cases where it is not possible to provide OSR due to physical constraints, the OSR shall be transferred to the local authorities free of costs through a deed. The local authorities can also permit the residential association or flat owner's association for maintaining such reserved space as a Park. But, in such cases, public access for the area as earmarked cannot be insisted upon. If the lands developed are above 10000 sq.m, then 10% of the area excluding roads shall be reserved and shall be transferred to the local authorities free of cost. 5.It was the claim of the petitioner that seeking for such transfer of OSR land to local body without providing for compensation is unconstitutional. Though they reserved their right to file a separate writ petition, it was not brought to the notice that such a writ petition was ever filed. But, however, the allegation of the petitioner was that the second respondent Corporation of Chennai on 7.1.2008 came to the petitioner's premises together with a demolition squad. Without serving any notice either under the Tamil Nadu Land Encroachment Act, 1905 or under the Tamil Nadu Public Premise (Eviction of Unauthorised Occupants) Act, 1975 started to demolish their structures. They did not even inform the exact area which ha to be kept as an OSR land and to what extent the petitioner's building can be demolished. 6.It is the claim of the petitioner that they tried to get in touch with the persons who are in possession of documents and found that there are gift deeds pursuant to which OSR lands were gifted to respondents. It was found that sale deeds were executed pursuant to CMDA's letter dated 11.3.1987. But it reliably understood that the gift deed itself was conditional and an extent of 1568 sq.m. have to be kept as a vacant space with a further condition that 10% of the land should be provided along the G.N.Chetty Road and Anna Salai. It was also claimed that the vacant land is owned by the original promotor of erstwhile Gemini Studio Complex and the lands are still vacant in view of the repealling of the Tamil Nadu Urban Land (Ceiling and Regulation) Act, 1978 and that the authorities should get the lands as per the revised gift deed gifting the lands adjacent to G.N.Chetty Road and Anna Salai. https://hcservices.ecourts.gov.in/hcservices/ 7.It is also claimed that seeking to measure the land within their compound and reserve the entire OSR land was done in their premises without application of mind. It is further claimed that without any proper notice, the second respondent has attempted to demolish the structure to claim OSR land. It is under these circumstances, the writ petition has been filed. 8.In opposition to the averments made, the second respondent stated that the OSR land was gifted to the Corporation by one S.Balasubramaniam and M/s.Gemini Arts Private Ltd., who are the original owners. The petitioner is only the purchaser of the said property. The original owners have also submitted a plan for constructing a shopping and office complex before the fourth respondent CMDA. The fourth respondent CMDA had framed Development Control Rules under the Tamil Nadu Town and Country Planning Act 1971. They further claimed that OSR land was given to second respondent through seven gift deeds. Those gift deeds were also duly registered. The first gift deed was executed on 16.3.1987 by M/s.Gemini Arts Private Ltd. The second gift deed was executed by S.Balasubramaniam. Likewise, the third and fourth gift deeds were executed by the said Balasubramaniam on 12.7.1990. The fifth gift deed was on 19.8.1994 by M/s.Balasubramaniam and B.Srinivasan represented through their power of attorney A.Manohar Prasad. The sixth gift deed was executed on the same day by M/s.Gemini Arts Private Ltd.. The seventh gift deed was executed on 18.1.1995 by M/s.S.Balasubramaniam and Gemini Arts Private Ltd. 9.According to the second respondent, total extent covering seven gift deeds is 1961 M3 or 1798 M2 as OSR lands. An extent of 163 M2 land was taken over by the corporation on 3.2.1995. It is handed over by Mr.Manohar Prasad, who is the Joint Managing Director o M/s.Gemini Arts Private Ltd. to the respondents. After handing over of land, the second respondent Corporation of Chennai became the absolute owner of OSR lands. They alone can develop lands for the use of general public. The petitioner company is only the subsequent purchaser. They have encroached the OSR land and had put up a cycle stand, sump, sewerage system, parking space and also blocked the entrance passage by constructing a compound wall with with water fountain. It was only after noticing the encroachment of the entire OSR land, on 6.1.2008, it was surveyed by the Surveyors with the help of the police. After demarcating the area, the Corporation finally entered into the land belonging to the respondents and that they have not entered into the land of the petitioner. The land is meant for public purpose and the second respondent has a proposal to develop the lands as a park including a children's play area for the use of general public. Therefore, the petitioner cannot dispute the ownership. Only with that in mind, a planning permission was granted for setting up a shopping complex and hotel. The petitioner being a subsequent purchaser cannot claim any right over the said land. https://hcservices.ecourts.gov.in/hcservices/ 10.It is also strongly refuted that the gift deeds were conditional and it is subject to the letter written by the fourth respondent CMDA. It is further stated that the gift deeds had correctly described the land. Subsequent to the gift deeds, the land were taken possession by the Corporation during the month o February, 1995. Since OSR land is meant for communal use and for recreational purposes as per the Development Control Rules, the writ petition is misconceived and liable to be dismissed. 11.Mr.R.Krishnamurthy, learned Senior counsel appearing for the petitioner though made several submissions with reference to the nature of the OSR land and also contended that the alternative land could also be used which are abutting the G.N.Chetty Road and Anna Salai. Such a contention at the instance of the petitioner cannot be accepted. The petitioner Hotel company is only a subsequent purchaser. They cannot repudiate the earlier gift deeds given by the erstwhile land owner. If there is any dispute with reference to transfer of lands in their favour by the erstwhile owner, it is for the petitioner to settle it with that owner and they cannot encroach upon the OSR land, which has to be strictly reserved in terms o Master plan and DCR prescribed under the Tamil Nadu Town and Country Planning Act. Since the petitioner contended about the revised gift deed and that the earlier gift deed was conditional, it is for them to work out their rights before an appropriate court. 12.In the present case, the second respondent Corporation has clearly established that the land in question has been gifted by seven registered gift deeds in favour of the Corporation and the same was irrevocable. It is the bounden duty of the Corporation to maintain it as OSR land for communal use and for recreational purposes as already stated by them. If they would like to keep it as park and children's play ground, it is for them to make such steps Even in the writ petition, the petitioner's contention as found in the prayer is that they should not be dispossessed of possession o property situated at No.601, Anna Salai, Chennai except by due process. They did not even disclose the survey number of the lands The affidavit and the prayer only gives the postal address with door number. Therefore, the present attempt by filing the writ petition and seeking for prayer of this nature is only to stall the second respondent from exercising their statutory duty regarding the OSR lands which were gifted to them. The petitioner themselves had stated that the OSR land could be taken only under due process. In any event, by virtue of the earlier gift deeds, the second respondent Corporation has been gifted the property which were taken possession as early as February, 1995. The petitioner who had subsequently encroached such land cannot file a writ petition of this nature without even disclosing the survey numbers of which they are the owners. https://hcservices.ecourts.gov.in/hcservices/ 13.On the contrary, the writ petition is a clear abuse of process of court and also filed to pre-empt the action of the Corporation of Chennai. If the petitioner is really the owner of any land, they should have taken an action before an appropriate forum Since their claim has been totally denied and also in the teeth o the gift deeds in favour of the Corporation, the claim made by the petitioner cannot be countenanced by this court. Though at the end o the argument, the senior counsel for the petitioner contended that they should be given liberty to offer certain alternative proposal with the Corporation, it is not for this court to record any statement on that score. It is for the petitioner to work out their remedies in the manner known to law. It is suffice to state that the present writ petition is misconceived, devoid of merits and deserve to be dismissed. 14.In the light of the above, the writ petition will stand dismissed. However, there will be no order as to costs. Consequently connected miscellaneous petitions stand dismissed. Sd/- Asst.Registrar /True Copy/ Sub.Asst.Registrar vvk To 1.The Secretary to Government, State of Tamil Nadu, Housing and Urban Development Department, Secretariat, Fort St George, Chennai-600 090. 2.The Commissioner, The Corporation of Chennai, Ripon Building, Chennai-600 003. 3.The Zonal Officer, Corporation of Chennai, Nungambakkam Zone, Chennai-600 034. 4.The Member Secretary, The Chennai Metropolitan Development Authority, Gandhi Irwin Road, Egmore, Chennai-600 008. https://hcservices.ecourts.gov.in/hcservices/ + 1 CC to Mr.V.Bharathidasan,Advocate,SR.44592 + 1 CC to M/s.Satish Parasaran,Advocate,SR.44936 + 1 CC to Mr.C.Kathiravan,Advocate,SR.44771 W.P.NO.722 of 2008 BV(CO) EM/30.6.10 https://hcservices.ecourts.gov.in/hcservices/