IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED :: 24-07-2008 CORAM THE HONOURABLE MR.JUSTICE S.J.MUKHOPADHAYA AND THE HONOURABLE MR.JUSTICE V.DHANAPALAN WRIT PETITION No.3643 OF 2002 Thai Nagar Welfare Association, a Society registered under Tamil Nadu Societies Registration Act, under Registration No.17/2001, No.96/4-A, Thai Nagar, Reddiarpatti Road, Melapalayam, Tirunelveli-627 005, rep.by its President N.Sukumaran Nair. ... Petitioner -vs- 1.The Special Commissioner, Town Planning, No.807, Anna Salai, Chennai-600 002. 2.The Member Secretary, Tirunelveli Local Town Planning Authority, Tirunelveli. 3.The Commissioner, Tirunelveli Municipal Corporation, Tirunelveli. 4.P.Saroja ... Respondents Petition under Article 226 of the Constitution of India, praying for issuance of a writ of certiorarified mandamus. https://hcservices.ecourts.gov.in/hcservices/ For petitioner : Mr.S.Subbiah For respondent 1 : Mr.M.Dhandapani, Special Govt.Pleader. For respondents 2 & 3 : Mr.R.Bharanidharan For respondent 4 : Mr.V.Selvaraj O R D E R V.DHANAPALAN,J. This Writ Petition has been filed, praying for issuance of a writ of certiorarified mandamus, to call for the records relating to the proceedings in Rc.No.42326/98 L.A.1, dated 13.03.2001 on the file of first respondent, quash the same and consequently forbear the respondents 1 to 4 from in any way modifying, altering or changing or otherwise in any manner deleting the conditions of the layout permission under Plan No.59/85, for the Thai Nagar, Melapalayam, Tirunelveli. 2. The case of the petitioner is as under : 2.1. He is the President of the society and the said society has been formed and registered in the interests and welfare of the owners of the plots and the residential houses put up in Thai Nagar, all under the approved layout under the provisions of Tamil Nadu Town and Country Planning Act,1971 (in short, "the Act") and all the lands covered under above layout originally belonged to one R.Kumar and others. The fourth respondent herein has been granted with power of attorney by the said R.Kumar and others and she, as the power of attorney of the said land owners, divided all their lands into several plots and got them approved under the Act. The said plots under the above layout are sold by the fourth respondent to several persons under several sale deeds and, in all the sale deeds, permission for formation of the layout has been referred to. Further, the members of the petitioner society also purchased several plots in the above said layout, now called Thai Nagar, and, as such, the present Writ Petition is filed not only on behalf of the members of the petitioner association, but also as a public interest litigation, as the persons most aggrieved are not only the members of the petitioner association, but also the public of Tirunelveli Municipal Corporation, living in Thai Nagar. 2.2. While that being so, it is proclaimed by the fourth respondent that she has been permitted to put up three godowns in the places earmarked as public open place. The reservation of the vacant land as an open land is only in conformity with the rules and regulations for formation of the layout and also with the approval by the Town Planning authorities and the said open land is vested only with the third respondent Corporation and open for public for https://hcservices.ecourts.gov.in/hcservices/ their use and enjoyment. An enquiry made by the petitioner society revealed that the fourth respondent has made applications to the first respondent on 21.06.2000 and 13.02.2001 and on the basis of the said applications, the first respondent, by his order dated 13.03.2001, has granted permission to the fourth respondent to convert the portion of the public place into the place for construction of three godowns. On the basis of the order of exemption, dated 13.03.2001, the second respondent passed further orders permitting the conversions for construction of three godowns by the fourth respondent and the third respondent also granted the building permission on the basis of the exemption granted by the respondents 1 and 2. 2.3. The society has made several complaints to the respondents 1 to 3, for which the society is given reply by the second respondent on 25.07.2001, informing about the order of exemption, dated 13.03.2001, by making an attempt to pacify the society that pubic interest would be taken note of by the second respondent at the time when the fourth respondent makes a proper application for building permission for construction of three godowns, but the second respondent has given permission to the fourth respondent for construction of three godowns without taking into consideration the public interest. The fact that the second respondent has given permission under Plan No.50/2001 makes it abundantly clear that the respondents 1 and 2 are abusing their powers of exemption for the self interest of the fourth respondent to convert a public place into a private one and such permission granted by the respondents 1 and 2 in favour of the fourth respondent is totally illegal. 2.4. When the layout has been formed under permission No.59/85, the open area is earmarked as a place prohibiting the constructions of any building and the land should be given to the third respondent Corporation for maintenance under the form of the gift deed duly registered in accordance with the terms and conditions of the formation of layout. Therefore, the order, granting exemption in respect of the portion of the public area into the godown area is illegal, without jurisdiction, arbitrary and abuse of the powers conferred upon the respondents 1 and 2 besides violation of rules and regulations of the Act. 3. The first respondent has filed a counter, stating that as per the power delegated to the Regional Deputy Director of Town and Country Planning, Chennai, he granted technical approval for residential layout in LP/R(T.K.) No.59/85 for the fourth respondent comprising an extent of 28014 sq.m. with a provision for 75 residential plots, 4830.20 sq.m. (17.14%) for open space and 9018 sq.ms. (3.07%) for shop purposes with specific conditions that the open space land reserved in the layout has to be taken over by a https://hcservices.ecourts.gov.in/hcservices/ gift deed from the petitioner by the Melapalayam Municipality. The fourth respondent applied to the Special Commissioner, requesting for conversion of part of the earmarked open space with the commercial purpose and, after scrutiny, the Commissioner, by his order dated 13.03.2001, granted permission for conversion of certain area earmarked as open space in the already approved plan to construct three godowns with the balance land with more than 10% retained as open space for the layout reservation subject to the conditions that the balance open land of more than 10% of total layout has to be handed over to Tirunelveli Municipal Corporation by a gift deed and that the released open space should be used only for godown purpose without human habitation. 3.1. It is also stated in the counter that the second respondent Member Secretary vide his letter dated 16.04.2001 directed the fourth respondent to hand over the open space as intimated by the Special Commissioner, Chennai, to the Commissioner, Tirunelveli Corporation. Pursuant to that, the Commissioner, Tirunelveli Corporation, vide his letter dated 07.05.2001, informed the Member Secretary that 10% land earmarked as open area was handed over to the Corporation by a gift deed by the fourth respondent. Thereafter, the Member Secretary, by his proceedings, dated 16.05.2001, granted Planning Permission for construction of three godowns, as per the orders of the Commissioner of Town and Country Planning, vide his letter dated 13.03.2001, and in accordance with the Act and the Rules. Accordingly, the first respondent prayed for dismissal of the writ petition. 4. The third respondent has also filed a counter affidavit, stating that the layout in question was formed by the fourth respondent and after getting the layout approved by the planning authority, the fourth respondent sold the plots to various persons; more than 50 houses were constructed; the third respondent properly assessed the buildings and taxes are being collected; more than 20 street lights have been provided, water supply facilities are also given to the dwelling houses and proper drainage has been constructed; the petitioner has sworn to an affidavit containing false allegations; the petitioner has not disclosed the letter, dated 19.07.2001, sent to him by the third respondent; 10% of the total area should be surrendered to the Corporation to be used for public purpose; accordingly, the fourth respondent has surrendered 10% of the area to the Tirunelveli City Municipal Corporation in accordance with the rules; originally, when the approval was granted, an area admeasuring 51,682 square feet on the south eastern corner of the layout area was shown as area wherein building could not be constructed; such a stipulation was made in view of the fact there was a private burial ground opposite to the said area; the planning authority directed the fourth respondent to surrender 10% of the total area for common use while permitting the fourth https://hcservices.ecourts.gov.in/hcservices/ respondent to make use of the remaining area for godown purpose and there is no change in the original approved layout. 4.1. The counter further goes to the effect that there is no violation of rules; the planning permission has been granted in accordance with the rules; the fourth respondent has also sold one plot to one Muthulakshmi by a registered sale deed, dated 12.09.2001, and she obtained permission to construct a godown; by a gift deed dated 27.04.2001, the fourth respondent has surrendered 30,375 sq.ft. of land i.e., 10.07% of the total layout area to the Tirunelveli City Municipal Corporation; the Corporation has converted the area as playground, which is now being used with installation of so many modern equipments; the impugned proceedings of the first respondent, dated 13.03.2001, do not suffer from any infirmity and based on the proceedings of the first respondent, dated 13.03.2001, the second respondent has permitted the fourth respondent to use 20,755 sq.ft. of land for godown and, therefore, this writ petition is liable to be dismissed. 5. The fourth respondent has also filed a counter, stating that the property originally belonged to four persons, namely, (1) R.Kumar, (2) N.Muthaiah, (3) Chellammal and herself and she acted as the power of attorney and sold the plots; under the original layout, 4830.20 square metres was left as open space (17.14%) and as per the rules, only 10% of the area has to be left for open space; in accordance with the stipulations contained in the impugned order, she has already handed over 10% of the land earmarked as open area to the Tirunelveli Corporation and, on 16.05.2001, the Member Secretary, Tirunelveli Local Planning Authority, granted planning permission for construction of three godowns. She also undertakes not to construct godowns in the remaining land, but shall apply to the Planning Authority for permission for making use of the land to build houses, Kalyana Mandapams or any other building permissible as per the rules. 6. The grounds on which the impugned order is attacked are as under : (i) The first respondent cannot convert a public place into a private place either under the Act or the Rules framed thereunder. (ii) The moment the land was earmarked as a public place, it was vested with the local authority, namely, third respondent and hence the first respondent has absolutely no power or jurisdiction to pass orders so as to have the effect of alienating the public property of the third respondent Corporation into the private property of the fourth respondent. (iii) The order of exemption permitting the fourth https://hcservices.ecourts.gov.in/hcservices/ respondent to convert a public place into the godown area would mean that a public property as also the property of the third respondent Municipal Corporation has been converted into a private property of the fourth respondent to enable her to put up three godowns either by herself or by alienating the public land under the guise of the order of exemption granted to the fourth respondent. (iv) The respondents 1 to 3, especially the third respondent, as the Manager of the public property, ought not to have enforced the orders of exemption granted by the respondents 1 and 2 and, in fact, the third respondent ought to have opposed the grant of exemption in favour of the fourth respondent. (v) The respondents 1 to 3 ought to have noticed that the restrictive covenants regarding user of the land or building are imposed on the authorities for sanctioning planning permission for layout of the site and building permission by virtue of power given under various enactments regarding use of a particular land or building in a particular area in public interest and have an element of interest with reciprocal obligations. (vi) As the Manager of the land, which is the subject matter of the layout, the third respondent should have seen that the conditions imposed in the layout are strictly complied with. (vii) The third respondent ought to have taken proceedings against the fourth respondent to have the gift deed executed in his favour, if not executed, under the provisions and the powers enjoined upon the third respondent Municipal Corporation under the Tirunelveli Municipal Corporation Rules. (viii) The respondents 1 to 3 should have held that the fourth respondent is estopped from making any claim for alteration of the layout plan that too after the expiry of 25 years from the date of the original layout plan. (ix) The respondents 1 to 3 cannot have any right to change the user of the land earmarked for the beneficial enjoyment of the residents of the layout, now called as Thai Nagar. (x) The power of exemption granted to the Government under Section 113 of the Act does not include the power to delegate such a power to the first respondent and hence the impugned order passed by the first respondent is totally without any power or jurisdiction, especially when the Government itself has not retained any such power of delegation to any authority. (xi) The order of exemption granted by the first respondent suffers from non-application of mind when it was passed https://hcservices.ecourts.gov.in/hcservices/ mechanically and arbitrarily even without issuing any notice to the beneficiaries who are enjoying the public area from the year 1985, depriving them of their right to live in good and habitable environment. (xii) The respondents 1 to 3 cannot, by allowing the constructions of three godowns in the residential area, convert a part of the residential area into a commercial area and such a power of classification or reclassification is not at all available to the first respondent. (xiii) The first respondent ought to have called for objections from the residents of the locality and the entire residents of Thai Nagar as well as Tirunelveli Municipal Corporation before passing the impugned order. (xiv) When any statute confers any power on any statutory authority including a delegate under a valid statute, however wide the discretion may be, the same has to be exercised reasonably within the sphere that statute confers and such exercise of power must stand the test of judicial scrutiny. (xv) The permission for construction of three godowns has completely changed the very living conditions and atmosphere, thereby polluting the residential area with dust and traffic hazard, affecting the personal safety of the residents. 7. Learned counsel for the petitioner has relied upon the following decisions : (i) R.Varadarajan & Others v. The Director of Town and Country Planning & Others, 2004 Writ L.R.514 : "The basis requirement of open space/play ground/parks in the newly developing colonies and housing scheme in public interest is not an issue which requires to be explained. Lack of space and dense population in our country may act as negative factors for not being able to achieve the high level of environmental ambience of residential areas in western countries of large roads, pavements, separate marginal roads for two wheelers etc. But the minimum which is required in public interest is some open space in every colony which would not only act as the lungs of the colony, but also a must for young and old to spend their time and energy usefully. Such areas are necessary not only for reducing the congestion in the area, but also for the https://hcservices.ecourts.gov.in/hcservices/ benefit of the physical and mental health of the residents especially the children and youth. That is the reason why there is statutory recognition for such a requirement to leave out a specified portion of the colony as open space as a pre-condition for sanctioning the layout plan. Having obtained the sanction of lay out plan by representing to the Corporation and the T.P.Authorities by earmarking and showing a portion of the lay out as playground/park, it would be totally illegal and against the public interest to go behind the said representation on the basis of which sanction had been obtained." "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." (ii) Bombay Dyeing & Mfg.Co.Ltd. v. Bombay Environmental Action Group, 2006 (3) Supreme Court Cases 434 : "Construction of buildings, if results in an impact on ecology, it was expected that the writ petitioners would question the validity thereof as well." (iii) Sri Devi Nagar Residences Welfare Association v. Subbathal, 2007 (3) MLJ 990 : "A part of the 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." 8. We have heard the learned counsel for the parties; gone through the records and also given our thoughtful consideration to the rival submissions. 9. At the outset, it has to be noticed that when an application is made for conversion of part of the earmarked open space to the commercial purpose, as per Section 49 (2) of the Act, the appropriate planning authority, shall, in deciding whether to grant or refuse such permission, have regard to the following matters, namely :- https://hcservices.ecourts.gov.in/hcservices/ (a) the purpose for which permission is required ; (b) the suitability of the place for such purpose ; (c) the future development and maintenance of the planning area. 10. In this case, a reading of the impugned order would make it clear that the respondent authorities have not examined clause (b) referred to above, regarding the suitability of the place for construction of godowns, while granting permission to the fourth respondent. In this connection, it is to be stated that the area, which has been shown as open area in the approved layout, cannot be converted into godowns, the reason being, the godowns, if allowed to be constructed, no doubt, cause pollution to the residents of the area. It is true that the fourth respondent has a right to seek for conversion and the authorities have been vested with such a power. But, such a power is to be exercised only in public interest and not in violation of the terms and conditions on which layout plan has been approved. 11. The open space in a residential area or in busy townships is treated as a lung space of the area. Where open space is preserved and earmarked in the plan for development of a planned town, the authorities cannot ignore the public interest and allot the same for construction of godowns, thereby causing environmental hazards to the residents of the colony. In other words, when an area is earmarked for a particular purpose in the approved layout, the said area cannot be converted or used for a different purpose. Open space is an essential feature of modern planning and development, as it greatly contributes to the improvement of social ecology. The interests of the residents of the area, who have purchased the plots as per the approved layout, have to be safeguarded and for the benefit of ecology, certain areas should be earmarked for garden and park, so as to provide fresh air to the residents of that locality, as ecological factors indisputably are very relevant considerations in construing a town planning statute. 12. The members of the petitioner society purchased the plots by investing their hard earned money on the expectation that the colony will continue to retain for ever the common facilities and features as found in the layout plan, which is a legitimate expectation in them. But, in this case, such an expectation is overthrown and the place which is earmarked for common use is converted to the benefit of the self-interested persons. 13. When the fourth respondent had accepted the earlier layout sanction subject to the condition that the disputed area should be kept as a public area and also acted upon such a condition not only in the formation of the layout but also in the sale of the approved plots, she is estopped from making any claim for the alteration of the layout plan. Further, the respondents 1 to 3 cannot have any right to change the user of the land earmarked for https://hcservices.ecourts.gov.in/hcservices/ the beneficial enjoyment of the residents of the layout, now called as Thai Nagar. The order of exemption was passed by the first respondent mechanically and arbitrarily even without issuing any notice to the beneficiaries who are enjoying the public area from the year 1985, depriving them of their right to live in good and habitable environment. If granting of exemption was so necessitated, the first respondent ought to have called for objections from the residents of the locality and of Thai Nagar as well as Tirunelveli Municipal Corporation before passing the impugned order. When any statute confers any power on any statutory authority, however wide the discretion may be, the same has to be exercised reasonably within the sphere that statute confers and such exercise of power must stand the test of judicial scrutiny. The apprehension of the petitioners that the permission for construction of three godowns would completely change the very living conditions and atmosphere, thereby polluting the residential area with dust and traffic hazard, affecting the personal safety of the residents, cannot be said to be untrue. Therefore, the impugned order suffers from non-application of mind on the part of the respondent authorities, as the suitability of the place, as contemplated under clause (b) to Section 49 (2), for construction of godowns in the residential area, was not taken into consideration. 14. An argument was advanced by the learned counsel for the petitioner that the term 'open space' in this case will attract the provisions of The Tamil Nadu Parks, Play Fields and Open Spaces (Preservation & Regulation) Act, 1959, under Section 2 and also certain other provisions with regard to use of open space. However, on a consideration of the facts and circumstances and the application having been made to the local authority after the land in question has been developed under the provisions of The Tamil Nadu Town and Country Planning Act and the Rules made thereunder, it is clear that the layout has been granted only under the provisions of The Tamil Nadu Town and Country Planning Act and the Rules thereof. Therefore, the argument of the learned counsel for the petitioner falls to the ground. 15. As held by this Court in the case of R.Varadarajan (cited above), the minimum, which is required in public interest, is some open space in every colony which would not only act as the lungs of the colony, but also a must for young and old to spend their time and energy usefully. Such areas are necessary not only for reducing the congestion in the area, but also for the benefit of the physical and mental health of the residents especially the children and youth. That is the reason why there is statutory recognition for such a requirement to leave out a specified portion of the colony as open space as a pre-condition for sanctioning the layout plan. Further, the Supreme Court, in Bombay Dyeing & Mfg.Co.Ltd.'case (referred supra),