IN THE HIGH COURT OF JUDICATURE AT MADRAS
K.K. SASIDHARAN, R.SUBRAMANIAN, JJ.
SIDCO Nagar Welfare Association rep. by its Secretary, P.K.Chitti Babu - Appellant
Versus
Chennai Metropolitan Development Authority, rep. By its Member Secretary - Respondent
W.A.No.1030, 1031 of 2011 & MP Nos.1 & 2 of 2011
Decided on : 04-09-2018
Tamil Nadu Town and Country Planning Act, 1971, - Section 2(2), 2(13), 2(34),2(36), 48 , 122 and 49, . Rule 19,19(a),19(a)(iii) and 19(a)(vii) - Challenge in these intra Court Appeals is to the common order of the learned Single Judge made in WP Nos.8867 and 32896 in and by which, the said Writ Petitions were dismissed on the premise that the appellant has not established that the land in question was classified as a park-cum-play field in the approved plan and thereby upholding the action of the respondents to convert the land in question as a mixed residential zone to enable the 3rd respondent to develop a commercial complex in the said land - Writ Petition was resisted by the 3rd respondent Tamil Nadu Housing Board contending that as per the approved lay-out, the land under reference was earmarked for store-cum-site office. - This store-cum-site office portion has been converted into convenience shops and bus stand, due to want of bus terminal in the area. The Transport Department, however, did not take over the site and it had informed the Executive Engineer of the Tamil Nadu Housing Board, by its letter that said site is not required for developing the same as a bus terminus - Thereafter, the said site was converted into a mixed residential site under G.O.3D No.8 - Said proposal has been accepted by Government - Therefore, Writ Petition filed on a misconception that the site in question was earmarked for park-cum-play ground is not maintainable – Held, Hon’ble Supreme Court and this Court had held that the land which is reserved for public purpose, particularly, under Rule 19(a)(iii) for communal and recreational purposes cannot be converted even by the Government, as neither the Government nor the owner, have any title over the same and it actually vests in the purchasers of the residential plot in the locality. In view of the foregoing reasons, we are of the considered view that the action of the Government in converting the land that was reserved for park-cum-play field into a mixed residential zone has to be set aside and both the Writ Appeals will stand allowed and the Writ Petitions in WP Nos.8867 and 32896 will stand allowed - In the normal circumstances, Court would have not hesitated to impose heavy costs on the respondents for the unreasonable stand they took and for burking facts before the learned Single Judge, however we desist from doing so, in view of very fair stand adopted by the learned Advocate General before us - Consequently, connected miscellaneous petitions are closed.
R. SUBRAMANIAN, J.
1. The challenge in these intra Court Appeals is to the common order of the learned Single Judge made in WP Nos.8867 and 32896 of 2007, in and by which, the said Writ Petitions were dismissed on the premise that the appellant has not established that the land in question was classified as a park-cum-play field in the approved plan and thereby upholding the action of the respondents to convert the land in question as a mixed residential zone to enable the 3rd respondent to develop a commercial complex in the said land.
2. The prayer in WP No.8867 of 2007 reads as follows:
“To issue a Writ of Mandamus (i) to direct the 2nd respondent to maintain the approved park-cum-play ground situated near Government Girls Higher Secondary School, 4th Main Road, Ward No.63, Corporation Zone IV, Villivallam, Chennai City, which is handed over by the 3rd respondent to the 2nd respondent and (ii) to issue direction to the 3rd respondent to hand over park-cum-play ground situated near Government Girls Higher School, 4th Main Road, Ward No.63 Corporation Zone IV, Villivakkam, Chennai City, if the 2nd respondent took a stand that the same is not handed over by the 3rd respondent till date, so as to enable the 2nd respondent to implement the directions prayed for in the prayer above and (iii) to grant such further orders.”
The prayer in WP No.32896 of 2007 reads as follows:
“To issue a writ of certiorari to call for the records in G.O.3(D) No.8, Housing and Urban Development (UD-I) Department, dated 24.08.2004 on the file of the 1st respondent and quash the same.”
3. The claim of the appellant/Writ petitioner which is a registered association of the residents of SIDCO Nagar, Villivakkam in the Writ Petition is as follows:
A Master plan for development of an area of 3,20,430 sq.mts was formulated by the Tamil Nadu Housing Board and the same was approved by the Planning Authorities in MMDA/WB/S&S No.4/77. Under the said development plan, a site situate almost in the middle of the area measuring about 59 grounds equivalent to 1,41,600 sq.feet (13160 Sq.mts) was classified as park-cum-play field. In the course of time, a School building came to be constructed in the said area and a water tank was also put up by the Chennai Metropolitan Water Supply and Sewerage Board in the southwestern corner of the land. The remaining area is lying vacant. Claiming that the Housing Board is now attempting to put up a multi storied commercial complex in the said land, the association had made various representations to the Authorities seeking to preserve the remaining land as a park or a play field as per the original sanctioned plan, referred to supra.
4. Since the Authority attempted to convert the same despite objections from the appellant association, the appellant was forced to seek a Mandamus as stated supra in WP No.8867 of 2007. It appears that during the course of the hearing of the Writ Petition in WP No.8867 of 2007, it was brought to the notice of this Court as well as the appellant Association that the Government had, by a Government Order in G.O.3D No.8, Housing and Urban Development (UD I) Department dated 24.08.2004 issued by the Housing and Urban Department, approved the request for reclassification of the land made by the Member Secretary of the Chennai Metropolitan Development Authority, namely the 1st respondent herein as a mixed residential site. Therefore, the association came forward with the second Writ Petition in WP No.32869 of 2007, challenging the said Government Order.
5. The sole ground on which the Government order came to be challenged was that as per the Original Plan approved in the year 1977, the site in question was earmarked for a park or a play ground, therefore, the Authorities did not have the power to reclassify into mixed residential site and put it to commercial use. It is also the claim of the appellan
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