IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated : 10.02.2011 Coram THE HON’BLE MR. JUSTICE VINOD K.SHARMA W.P.No.25841 of 2010 and M.P.No.1 of 2010 1. R.Krishnamurthy 2. Francis Cedric D'Cruz 3. S.Vijayalakshmi 4. N.K.Sivakumar 5. Mohana Sriram .. Petitioners .. Vs .. 1. The District Collector, Tiruvallur District, Tiruvallur. 2. Tahsildar, Tiruvallur District, Tiruvallur. 3. The Chairman, Kadambathur Panchayat Union, Kadambathur, Tiruvallur Taluk, Tiruvallur. 4. The President, Polivakkam Panchayat Union, Polivakkam, Tiruvallur Taluk, Tiruvallur. 5. The Directorate of Town and Country Planning, 807, Anna Salai, Chennai – 2. 6. E.Krisha Reddy ... Respondents Prayer:- Writ Petition filed under Article 226 of the Constitution of India praying for the issuance of a Writ of Mandamus, directing the respondent Nos.1 to 5 to comply with the approved layout plan for DTCP Lay Out No.1538/91 bearing Survey Nos.120/12B, 120/12C, 120/12E, 121/1A Part, 121/2, 122/4B, 127/1A and 133/1-3 located in Polivakkam Village, Tiruvallur Taluk, Chengai-M.G.R. District (now renamed as Tiruvallur District) and to remove any pillars, grids, girders, rods or any other constructions on the space earmarked for a Park in Survey No.121/1A as per this Plan. https://hcservices.ecourts.gov.in/hcservices/ For Petitioners : Mr.Ananth Padmanabhan For RR-1, 2 & 5 : Mr.B.Vijay, Government Advocate For RR-3 & 4 : Mr.I.Paranthaman For R-6 : Mr.P.B.Balaji O R D E R The petitioners, being aggrieved by the action of respondents 3 and 4 in illegally converting public park into vegetable market, have approached this Court, with a pryer for issuance of a writ in the nature of prohibition, restraining the respondents from changing the approved layout plan for DTCP Lay Out No.1538/91 bearing Survey Nos.120/12B, 120/12C, 120/12E, 121/1A Part, 121/2, 122/4B, 127/1A and 133/1-3 located in Polivakkam Village, Tiruvallur Taluk, Chengai-M.G.R. District now renamed as Tiruvallur District. The petitioners have also prayed for a writ in the nature of mandamus for removal of pillars, grids, girders, rods and other constructions raised on area earmarked for a Park in Survey No.121/1A. 2. The uncontroverted facts in the case are, that the petitioners purchased plots from the sixth respondent viz., E.Krishna Reddy. The construction, on the plots, is raised as per the layout plan sanctioned for DTCP Lay Out No.1538/91 bearing Survey Nos.120/12B, 120/12C, 120/12E, 121/1A Part, 121/2, 122/4B, 127/1A and 133/1-3 located in Polivakkam Village as referred to above. The layout plan is duly approved by the competent authority. In the layout plan, two parks are provided, which are being used by the resident of the village. The third respondent, without any authority of law or any resolution of panchayat union, has permitted the construction of a vegetable market (Uzhaver Sandai) on the area earmarked for the park, in Survey No.121/1A. 3. The case of the petitioner is that the land and the park were given as gift, therefore it is not permissible for the third respondent or any other authority to convert the use of park or any other purpose, in the lay out plan. 4. In support of the contention, the learned counsel for the petitioners placed reliance on the Division Bench Judgment of this Court in W.A.Nos.38 and 39 of 2010 decided on 23.11.2010 (K.Rajamani and others Vs. State of Tamil Nadu and others). 5. Before the Division Bench of this Court, one of the question raised was, "Whether the open space earmarked in a layout for use of park, etc., could be allowed to be put in use for any other purpose?". https://hcservices.ecourts.gov.in/hcservices/ 6. The question was answered as under:- "19. Point No.(ii): This takes us to the next question as to whether the lands specified for public purpose and left open in the layout could be used for any other public purpose. The question as to whether a land specified for public purpose and left open in a layout could be used for any other purpose came up for consideration before the Apex Court as well as this Court and we have enough authorities on the subject. The Apex Court in Bangalore Medical Trust v. B.S.Muddappa, (1991) 4 SCC 54, has held as follows: "Public park as a place reserved for beauty and recreation was developed in 19th and 20th century and is associated with growth of the concept of equality and recognition of importance of common man. Earlier it was a prerogative of the aristocracy and the affluent either as a result of royal grant or as a place reserved for private pleasure. Free and healthy air in beautiful surroundings was privilege of few. But now, it is a gift from people to themselves. Its importance has multiplied with emphasis on environment and pollution. In modern planning and development, it occupies an important place in social ecology. A private nursing home on the other hand, is essentially a commercial venture, a profit oriented industry. Service may be its motto but earning is the objective. Its utility may not be undermined but a park is a necessity not a mere amenity. A private nursing home cannot be a substitute for a public park. No town planner would prepare a blueprint without reserving space for it. Emphasis on open air and greenery has multiplied and the city or town planning or develo Acts of different States require even private house owners to leave open space in front and back for lawn and fresh air. In 1984 the B.D. Act itself provided for reservation of not less than 15 percent of the total area of the layout in a development scheme for public parks and playgrounds the sale and disposition of which is prohibited under Section 38-A of the Act. Absence of open space and public park, in present day when urbanisation is on increase, rural exodus is on large scale and congested areas are coming up rapidly, may give rise to health hazard." The very same question came up for consideration again before the Apex Court in Pt.Chet Ram Vashist v. Municipal Corporation of Delhi, (1995) 1 SCC 47, wherein the Apex Court has held as follows: https://hcservices.ecourts.gov.in/hcservices/ "6. Reserving any site for any street, open space, park, school etc. in a layout plan is normally a public purpose as it is inherent in such reservation that it shall be used by the public in general. The effect of such reservation is that the owner ceases to be a legal owner of the land in dispute and he holds the land for the benefit of the society or the public in general. It may result in creating an obligation in nature of trust and may preclude the owner from transferring or selling his interest in it. It may be true as held by the High Court that the interest which is left in the owner is a residuary interest which may be nothing more than a right to hold this land in trust for the specific purpose specified by the coloniser in the sanctioned layout plan. But the question is, does it entitle the Corporation to claim that the land so specified should be transferred to the authority free of cost. That is not made out from any provision in the Act or on any principle of law. The Corporation by virtue of the land specified as open space may get a right as a custodian of public interest to manage it in the interest of the society in general. But the right to manage as a local body is not the same thing as to claim transfer of the property to itself. The effect of transfer of the property is that the transferor ceases to be owner of it and the ownership stands transferred to the person in whose favour it is transferred. The resolution of the Committee to transfer land in the colony for park and school was an order for transfer without there being any sanction for the same in law." 20. This Court has also ruled that the area reserved for public purpose cannot be altered to be put to use for any other purpose in the decision in Villupuram Municipality represented by its Commissioner, Villupuram v. M.Subramanian and others, (2000) 3 MLJ 375. A Division Bench of this Court in Karpaga Nagar Nala Urimai Sangam rep.by its Secretary, Shanmugavel v. Municipal Administration and Water Supply Department rep.by its Secretary, Chennai and others, (2007) 4 MLJ 1006, after considering in detail the provisions of the Act, has held that the open space earmarked for public purpose cannot be altered. This Court has further held that the layout sanctioned by the municipal authority cannot be altered by the Government by issuance of a Government Order de- reserving such plots. 21. A survey of the above law shows that the land once earmarked for public purpose cannot be earmarked for any other purpose and, particularly, to de-reserve or put to use as housing plots. (See Krishna Nagar Residents https://hcservices.ecourts.gov.in/hcservices/ Welfare Association v. Director of Town and Country Planning, (2001) 3 LW 828.) 22. The contention of Mr.K.M.Vijayan, learned senior counsel for the appellants is that the law relating to open space would be available only in case of apartments, where the purchaser of an apartment would have right to seek for maintenance of public space as such, as he/she has an undivided share in the open land as well and that law is not applicable to a layout. In our opinion, the said contention is totally on a misconception. The purpose for leaving open space is not only to meet the future developmental activity, but also to meet the recreational activity of the inhabitants. The provision of open space in a development plan is to provide green space as well which is an essential feature in the development of an area. In a layout leaving of certain area of land as open space for use of park is in conformity with the development control rules. Hence, there cannot be a different yardstick as to the de- reservation of land left for open space in the case of an apartment and layout. Only in this context, the provisions of Section 432(10)(b) of the Coimbatore City Municipal Corporation Act relating to the power of the Municipal Corporation to make bye-laws in respect of protection of avenues, trees, grass, other appurtenances of public streets and other places was referred to by the learned Judge which, in our considered view, requires no interference. Hence, the learned Judge has rightly quashed the order of the Government in de-reserving the land earmarked for public purpose in the layout into housing plots and we are not inclined to interfere with the same. We answer the point no.(ii) accordingly." 7. The action of the third respondent in allotting the land for construction of vegetable market, therefore, cannot be sustained, in view of the settled law that it is not open to change the use of public park for any other purpose. 8. Consequently, this writ petition is allowed. A writ in the nature of prohibition is issued restraining the respondents from changing the use of park in Survey No.121/1A for any other purpose. A writ of mandamus is also issued to respondents 3 and 4 to remove all the construction raised in Survey No.121/1A so as to bring it back to park. The respondents 3 and 4 are directed to remove the encroachment/construction, within a period of two months of the receipt of certified copy of this order. No costs. Consequently, connected miscellaneous petition is closed. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar https://hcservices.ecourts.gov.in/hcservices/ jrl To 1. The District Collector, Tiruvallur District, Tiruvallur. 2. Tahsildar, Tiruvallur District, Tiruvallur. 3. The Chairman, Kadambathur Panchayat Union, Kadambathur, Tiruvallur Taluk, Tiruvallur. 4. The President, Polivakkam Panchayat Union, Polivakkam, Tiruvallur Taluk, Tiruvallur. 5. The Directorate of Town and Country Planning, 807, Anna Salai, Chennai – 2. + 1 cc to Mr.I Paranthaman, Advocate sR.10570 + 1 cc to the Government pleader Sr.10571 + 1 cc to Mr.P.B. Ramanujam, Advocate Sr.10100 + 2 ccs to Mr.Ananth Padamandhan, Advocate SR.10099 W.P.No.25841 of 2010 LA(CO) Eu 4.3.11 https://hcservices.ecourts.gov.in/hcservices/