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Judges : K.BALAKRISHNAN NAIR
Shasthri Nagar Colony Welfare Committee, Represented by its Secretary - Appellant
Versus
The Calicut Development Authority, Represented by its Secretary - Respondent
Case No : WP(C).Nos.4703 (I) & 23174 of 2005 (H)
Decided On : 11/11/2005
Advocates Appeared :
For the Petitioners: Arliss Trency Antony, P. Ravindran, Anil Sivaraman, V.G. Sankaran, Advocates. For the Respondents: R1, M.K. Aboobakcer, SC, Calicut Dev. Auty., S. Venkatasubramonia Iyer (SR.), R2, P.V. Kunhikrishnan, S.C. Kozhikode Corpn., Advocates, R3 & R4, P.R. Ramachandra Menon, Advocates.
Madras Town Planning Act 1920 - Section. 15 - Town planning - Land were developed into a housing colony and the members of the Association - petitioner, an Association of the residents of Shastri Nagar Colony, near Eranhipalam in Kozhikode, has filed this Writ Petition, feeling aggrieved by the steps taken by the 1st respondent Calicut Development Authority, to sell 58 cents of open space in that colony, to the Lakshadweep Administration. The brief facts of the case The 1st respondent acquired 13.09 acres of land and developed it into a housing colony and the members of the Association were sold plots, having various extents, as per Ext.P3 and similar sale deeds. In the said colony, two plots have been set apart as open spaces, having an extent of 42 cents and 58 cents respectively. Ext.P2, the approved lay out plan of the colony, would show that they are meant for parks, play ground and nursery school. The open space on the eastern side, which was set apart for parks and nursery school, is now presently used as a basket-ball court and play ground for children. The said plot is proposed to be sold to the Lakshadweep Administration. The petitioner submits, as per Ext.P3 sale deed, its members also paid the proportionate value of the area set apart for parks, roads etc. The relevant portion of the said deed which states that the land value was fixed, taking into account the areas set apart for roads, drain, parks etc - Held, Land were developed into a housing colony and the members of the Association were sold plots, having various extents as per sales deeds. Two plots have been set apart as open spaces, meant for parks, play grounds and nursery school. The said plot is proposed to be sold to the Lakshadweep Administration. Government did not vary or modify the town planning scheme, which is condition precedent for using a residential area for non residential purpose. Development Authority has committed grave illegality in allotting residential plots for non residential purposes. The open space in a residential area or in busy townships is treated as lung space of the area. It provides fresh air and refreshment to the persons in the neighbourhood. Its presence ameliorates the hazards of pollution and it has to be preserved and protected for the sustenance of the men around. The statutory requirement to leave 15% of the total area (now 10%) has been included with a laudable purpose. It is for the health and well being of the inhabitants of the residential area. The same cannot be bartered for the financial gain of the Authority. The Authority is restrained from selling any portion of the land which is set apart as open space, for establishing parks and nursery school. The municipal authorities are supposed to act as trustees and should see to it that the property which vests in it is used for the benefit of the residents of the city it governs and if open spaces are sought to be used in a way which would result in pollution, destruction of scenic beauty or disturbance of the ecology, then the Courts would step in and would remind the municipal authorities of their obligations - Building Rules 1984 (Kerala), R. 14( 5)(a)(iv), Municipality Building Rules 1999 (Kerala), R. 27(iv) & Development Authorities Rules 1984 (Kerala), R. 55
Key Points: - The court held that the open space reserved for parks and nursery school cannot be sold or used for non-residential purposes without proper variation of the town planning scheme; Ext.P5 was quashed for ultra vires. (!) (!) (!) (!) - Government action to permit sale of open space without following Section 15 Madras Town Planning Act procedures (variation or revocation) is improper; variation must be done via a subsequent scheme with compliance and public objection consideration. (!) (!) (!) (!) - Open spaces in residential developments are intended as lung space and for health benefits; authorities act as trustees and must preserve open spaces for public use; sale or diversion is prohibited where it defeats the statutory purpose. (!) (!) (!) (!) (!) - Rule 55 of Kerala Development Authorities Rules requires prior Government approval for disposal of substantial parts of an undertaking; however, the court found Ext.P5 invalid as it does not fall within permissible scope. (!) (!) (!) (!) - The petitioners’ association and residents' rights to enforce compliance with planning and environmental considerations were affirmed; non-compliance can be enjoined by the court. (!) (!) (!)
W.P.(C).23174/2005:
The petitioner, an Association of the residents of Shastri Nagar Colony, near Eranhipalam in Kozhikode, has filed this Writ Petition, feeling aggrieved by the steps taken by the 1st respondent Calicut Development Authority, to sell 58 cents of open space in that colony, to the Lakshadweep Administration. The brief facts of the case are the following:
2. The 1st respondent acquired 13.09 acres of land and developed it into a housing colony and the members of the Association were sold plots, having various extents, as per Ext.P3 and similar sale deeds. In the said colony, two plots have been set apart as open spaces, having an extent of 42 cents and 58 cents respectively. Ext.P2, the approved lay out plan of the colony, would show that they are meant for parks, play ground and nursery school. The open space on the eastern side, which was set apart for parks and nursery school, is now presently used as a basket-ball court and play ground for children. The said plot is proposed to be sold to the Lakshadweep Administration. The petitioner submits, as per Ext.P3 sale deed, its members also paid the proportionate value of the area set apart for parks, roads etc. The relevant portion of the said deed which states that the land value was fixed, taking into account the areas set apart for roads, drain, parks etc., reads as follows:
“WHEREAS the Vendor Authority had to set apart about 50% of the acquired land exclusively for roads, drains, parks, rehabilitation etc., and develop the same, thereby getting the extent of saleable land reduced to about 50% and
WHEREAS the Vendor Authority has incurred and is incurring expenditure of different. Heads of Account such as development charges, establishment charges, interest on investments, and the Vendor Authority having regard to the foregoing facts, fixed the total consideration for the developed land at Rs.11,750/- cent.”
Based on the above clause, the petitioner submits the allotees have paid the land value for the area set apart for parks, play ground, nursery school etc. When they came to know that the plot remaining as open space, set apart for parks and nursery school, having an extent of 58 cents, is going to be sold to the Lakshadweep Administration, the Association filed Ext.P4 representation before the Chairman of the 1st respondent. Thereafter, this Writ Petition is filed, seeking appropriate reliefs against the sale of the above said plot of land.
3. In the counter affidavit filed by the 1st respondent, it has produced Ext.R1(h) order of the Government dated 10.12.2003, permitting it to sell the said plot of open space to the Lakshadweep Administration. So, the Writ Petition was amended, producing the said order as Ext.P5 and challenging the same. The petitioner would submit that as per the detailed Town Planning Scheme, notified for the Kozhikode Corporation, this particular area is zoned as residential zone. If any modification of the said detailed Town Planning Scheme is necessary, the procedure prescribed under Section 15 of the Madras Town Planning Act, 1920, has to be followed. As per the Kerala Building Rules, 1984, it is mandatory to leave 15% of the total developed land as open space. As per the Kerala Municipality Building Rules, 1999, at least 10% of the developed land has to be set apart as open area. But, in this case, only one acre out of 13.09 acres alone was set apart as open space. Now, a portion of that area is sought to be sold to the Lakshadweep Administration. The petitioner therefore, submits, the alienation of the land will offend Rule 14(5)(a)(iv) of the Kerala Building Rules, 1984 and Rule 27(iv) of the Kerala Municipality Building Rules 1999. It is also pointed out that though exemption from Zoning Regulations and permission for sale was sought by the 1st respondent, the Government granted only permission for sale, by Ext.P5 order. The prayer for exemption of the land from Zoning Regulations, was not considered. Rule 55 of the Ker
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