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2010 Supreme(Mad) 5008
High Court of Judicature at Madras
THE HONOURABLE MR. JUSTICE D. MURUGESAN & THE HONOURABLE MR. JUSTICE VINOD K. SHARMA
K. Rajamani & Others
Versus
Alamunagar Residents Welfare Association, & Others
W.A.Nos.38 & 39 of 2010
Decided On : 23-11-2010
For the Appellants:K.M. Vijayan, Senior Counsel for B. Harikrishnan, Advocate.
For the Respondents:G. Rajagopalan, Senior Counsel for M/s G.R. Associates for Residents Welfare Association, Advocates, M. Dhandapani, Special Government Pleader for State, R. Sivakumar for Coimbatore Corporation, Advocate.
Ratios
a. Neither the Town planning authority nor the State Government has any power to alter the public purpose for which any specified area was earmarked and exempt that land to enable its use for any other purpose.
b. The land once earmarked for public purpose by the Town Planning Authority cannot be earmarked for any other purpose and, particularly be put to use as housing plots.
c. Once the layout plan is approved, the Government is not having the power to de-reserve the portion of the land which was reserved for public purpose.
d. The Government’s power to de-reserve the land is not available after the layout plan is approved, and after approval, its usage cannot be changed.
e. Local authority cannot be taken as the owner of the site reserved for public purpose in the layout plan and it would only be its custodian.
Headnote:(A)Tamil Nadu Town and Country Planning Act, 1971(35 of 1972)-Sec.36, 37-Town planning-Lay out-Approval-Public purpose site- Exemption- Usage-Alteration- Government-Authority-Appellant had purchased a piece of land that was earmarked for public purpose while approving the lay out-On an application, the State Government permitted the change of the area from the one for public purpose to house site and directed the Town and Country Planning Authority to effect amendment-Direction of the Government was challenged by the association of the residents-Municipality also resolved to take over the whole of the public purpose site which was questioned by the appellant-Association challenged the order of the Government whereas, the petitioner challenged the resolution of the Municipality-Association contended that the Government could not permit the conversion of the public purpose site in the layout for anyother purpose which was resisted by the appellant and the Government-When the single judge upheld the objection of the association and rejected the plea of the appellant, he appealed against both orders-Parties stood by their stands-Held, the site reserved for public purpose while approving the layout could not be permitted to be converted for its use for anyother purpose-Government had no power in this regard-Orders of the single judge was upheld and the appeals were dismissed.
(B)Tamil Nadu Town and Country Planning Act, 1971(35 of 1972)-Sec.36, 37-Town planning-Lay out-Approval-Public purpose site- Exemption- Usage-Alteration- Government-Authority- Neither the Town planning authority nor the State Government has any power to alter the public purpose for which any specified area was earmarked and exempt that land to enable its use for any other purpose- The land once earmarked for public purpose by the Town Planning Authority cannot be earmarked for any other purpose and, particularly be put to use as housing plots.
In our considered view, such power cannot be extended to alter, revoke or modify the conditions imposed in the layout plan. In that view of the matter, we hold that once such permission is accorded and in that permission if a specified area is earmarked for public purpose, even the planning authority shall not have power to exempt that land for being put to use for any other purpose. In that context, the State Government also cannot have any jurisdiction to alter the conditions imposed in the layout, whereby certain lands are earmarked as open space to be used for public purposes. Para 17
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. Para 21
(C)Tamil Nadu Town and Country Planning Act, 1971(35 of 1972)-Sec.36, 37, 38-Town planning-Lay out-Approval-Public purpose site- Municipality-Title-Once the layout plan is approved, the Government is not having the power to de-reserve the portion of the land which was reserved for public purpose-The Government’s power to de-reserve the land is not available after the layout plan is approved, and after approval, its usage cannot be changed-Local authority cannot be taken as the owner of the site reserved for public purpose in the layout plan and it would only be its custodian.
Therefore, the contention of the learned senior counsel that in view of non-compliance of the provisions of the Land Acquisition Act, the land in question shall be deemed to have been released cannot be accepted on the facts of this case. Equally, we also hold that in the absence of acquisition of land in terms of Sections 36, 37, 38 of the Planning Act, the Municipal Corporation cannot claim right over the land, as the right of the owner cannot be deprived except following the above procedure. Para 23
D. MURUGESAN, J.
1. The appellants in both the writ appeals question the common order dated 4.1.2010 passed in W.P.Nos.23980 of 2005 and 25371 of 2002. W.P.No.23980 of 2005 was filed by Alumunagar Residents Welfare Association, Coimbatore questioning the G.O.(R) No.80, Municipal Administration and Water Supply (MW-1) Department dated 15.2.2005 according permission to change the usage of land from public purpose to housing plots in respect of the land situate in Survey No.1279, Alamunagar, Coimbatore purchased by the appellants herein to an extent of 4250 sq.ft., 3200 sq.ft., and 3406 sq.ft respectively. The Association also questioned the direction of the Government to change the usage of land from public purpose in Survey No.1278 of the very same layout and the further direction to the Commissioner of Town and Country Planning to take action to make necessary amendments in the layout.
2. W.P.No.25371 of 2002 was filed by the appellants themselves questioning the Resolution No.2369 dated 27.11.2005 passed by the Commissioner of Coimbatore City Municipal Corporation resolving under Section 432(10)(b) of the Coimbatore City Municipal Corporation Act to take over an extent of 20,973 sq.ft., of land in Town Survey No.1278 of Alumunagar. The learned Judge, after a detailed discussion, allowed W.P.No.23980 of 2005 and dismissed W.P.No.25371 of 2002. Hence, the present writ appeals.
3. Alumunagar on the Sathyamangalam Road of Coimbatore was formed in the year 1983. A layout was approved by the Deputy Director, Local Planning Authority as well as the Commissioner, Coimbatore City Municipal Corporation in L.P.R.(C) No.22 of 1983. The layout was in respect of the land situate in T.S.No.1278 part to a total extent of 2.428 hectares, approximately equivalent to six acres of land. The layout provided for 54 plots and an area of about 51 cents (20,973 sq.ft. approx.) in the northern portion of the layout was left for public purpose, namely, to establish a park and to maintain certain wells. On the basis of the approved layout, 54 plots have been sold to various individuals and the land earmarked for public purpose was kept open. The appellants had purchased certain extent of land individually in Survey No.1278 in the layout in Alumunagar and put up constructions. The Commissioner, Coimbatore City Municipal Corporation issued notices under Section 296(3) for demolition. The action of the Municipal Corporation was questioned by the appellants in W.P.No.14327 of 1995 and were unsuccessful. The writ appeal preferred by them was also dismissed for default on 3.4.2008. In the meantime, the appellants approached the Government for re-classification of the land and the same was rejected in G.O.Ms.No.231, Municipal Administration and Water Supply Department dated 26.6.2002. This order was not questioned by the appellants. Thereafter, the appellants once again made a further request by letter dated 14.2.2005 for change in the usage of land from public purpose to housing plot through their power of attorney. That request was considered and accepted by the Government in G.O.(R) No.80 dated 15.2.2005. Apparently, the Government took note of the resolution of the Municipal Corporation dated 27.11.95, whereby the Municipal Corporation resolved to take over the land for maintaining park etc., which was questioned by the appellants in W.P.No.25371 of 2002.
4. On a challenge to the above Government Order by the Residents Association, the learned Judge found that the open space reserved for public purpose cannot be altered and with that reason, the learned Judge held that the Government Order should be quashed. So far as the challenge to the resolution of the Municipal Corporation by the appellants, the learned Judge found that the Corporation could only be the custodian of the reserved space in order to maintain the same for the benefit of the society in general and with that reason, the learned Judge directed the Municipal Corporation to be th
