2019 Supreme(Mad) 249

IN THE HIGH COURT OF JUDICATURE AT MADRAS
M. VENUGOPAL, R. PONGIAPPAN, JJ.
Prikrithi Foundations Limited - Petitioners
Versus
The Secretary to the Government & Ors. - Respondents
W.P.No.9245 of 2017
Decided On : 03-01-2019

A person who has gifted land to a local authority for use as a park has no legal right to claim restoration of old buildings in the park area, especially when the old buildings were demolished as 'illegal Developments'.

Headnote:

The Court held that the Petitioner, after gifting the OSR Land to the Local Authority, cannot be said to be a person who is interested in the Land allotted for Park. The clear-cut legal position is that after vesting of the 'OSR Land for Park' with the Local Authority, the said Authority is empowered to remove the old buildings therein and the Petitioner has no legal right to stake a claim for restoration of old buildings in the Park area, especially when the fact of the matter is that the old buildings were demolished as 'illegal Developments'.

Fact of the Case:

The Petitioner/Company had purchased the property through an 'Auction Sale' as per Sale Certificate executed by the Recovery Officer of the Debts Recovery Tribunal, pursuant to a Recovery Certificate issued in O.A.No.408 of 1998 on 24.12.2002, which was registered on 21.04.2003 in the office of the Sub Registrar, Tambaram. As a matter of fact, the property originally belonged to the Company 'INCA Cables Private Limited'. The Petitioner/Company submitted Applications before the 2nd Respondent/Chennai Metropolitan Development Authority, with duly marked sketch for a Layout of Housing Plots along with earmarked areas for 'Open Space Recreational purposes', Roads, Streets etc., which was scrutinised and approved by the 2nd Respondent as per Planning Permit issued on 25.04.2003. The said Planning Permit was also approved by the Executive Officer, Sembakkam Town Panchayat, now upgraded into a Municipality on 13.05.2003. The Planning Permit issued by the 2nd Respondent/Chennai Metropolitan Development Authority clearly mentions various conditions for developing the 'Layout' in accordance with 'Development Control Rules' and one of the conditions of the Layout approval was that the Petitioner had to transfer through a Gift Deed and Free of Cost the space which was set apart for streets and communal and recreational purposes to the 3rd Respondent/Local Authority. The Petitioner executed a registered Gift Deed on 22.04.2003 in favour of the then Sembakkam Town Panchayat/3rd Respondent on the file of Sub Registrar, Tambaram. By means of proceedings of the then Executive Officer, Sembakkam Special Village Panchayat, Kancheepuram District, on 31.12.2004, the Open Space Reservation Land comprised in Survey field numbers 149 and 150 at Sembakkam Village and measuring about 5624 square meters in the approved layout of Heritage Jayendra Nagar was granted on 'Lease' to the Petitioner on a monthly Rental Basis. The Lease period was fixed from May 2003 to a mutually acceptable date for a monthly Rent of Rs.5000/-. The Lease conditions were that it was on 'as is where is condition' and that the usage, maintenance and utilization of OSR land shall be determined by the Petitioner and that the nature and classification of OSR land should not be altered, the Land ought not to be misused and that the Petitioner should abide by the letter of commitment dated 26.04.2003. Further, the 3rd Respondent will have all Rights of Access, Visitation, Inspection and Supervision of the usage in the Leased out OSR Land. Also, it was mentioned that the Petitioner shall handover the Leased Land back at the end of the Lease period in a proper usable condition. Furthermore, the Lease Agreement was entered between the Petitioner and the 3rd Respondent on 07.01.2005 and the Lease 'Rental Charges' of Rs.95,000/- payable from May 2003 to the date of Lease was paid to the 3rd Respondent and that the Petitioner was put into possession of the Leased out Land by the 3rd Respondent. After receipt of a communication from the 3rd Respondent on 06.10.2004 the Petitioner addressed a letter to the 3rd Respondent on 11.10.2004 mentioning that they will duly and diligently follow their undertaking dated 26.04.2003 and that they will develop a Community Hall, Prayer Hall, Creche for children, rooms for indoor games, visiting physician, cafeteria, gym, library, room for association, kitchen, dinning halls for the requirements of the people proposed to be occupying in that Location in the old factory building which was already standing in the OSR area. Moreover, the Petitioner committed that two wells which were situated in the other two OSR area stands developed as a drinking water source to the occupants of the colony. The Letter further communicated the landscaping work carried out by it around the two wells for its maintenance and usage of the general public of the colony. In fact, in the said letter, it was mentioned that the 'Sewerage Treatment Plant' connecting all the Houses and other social welfare measures carried out by it such as laying tar topped roads, building of Overhead Water Tank, laying of underground cabling and wire lines, telephone lines, water lines and sewer lines, installation of Electrical posts for Lighting of streets and Roads and the Letter also explained that all such works would only lead to an increase in the price of property which would invariably generate more 'Tax, Revenue' to the 3rd Respondent. Only after considering the aforesaid aspects, the 3rd Respondent was ready to provide the 'OSR Area' on Lease (Monthly Rent) basis to the Petitioner and that the Petitioner as a developer was continuously paying the monthly Lease Rent to the 3rd Respondent. The Petitioner, after the completion of Project, wanted to take over the 'Jayendra Nagar facilities' and maintain the same. However, the Association was not interested to maintain the said facilities and pay the Lease Rent and that the Petitioner, through a communication dated 04.04.2009, had surrendered the Lease with all keys and Locks of all the facilities developed in the said OSR area which was Leased to it in 2004. The handing over of the Lease was also accepted by the 3rd Respondent. Hence, the 'Developments' which took place in Open Space Recreational Area that in conformity with the condition No.12 of the Planning Permit read with Rule 14 of the Development Control Rules of the Chennai Metropolitan Development Authority are Legal.

Finding of the Court:

The Court held that the Petitioner, after gifting the OSR Land to the Local Authority, cannot be said to be a person who is interested in the Land allotted for Park. The clear-cut legal position is that after vesting of the 'OSR Land for Park' with the Local Authority, the said Authority is empowered to remove the old buildings therein and the Petitioner has no legal right to stake a claim for restoration of old buildings in the Park area, especially when the fact of the matter is that the old buildings were demolished as 'illegal Developments'.

Issues: Whether the Petitioner has any legal right to claim restoration of old buildings in the Park area, especially when the fact of the matter is that the old buildings were demolished as 'illegal Developments'.

Ratio Decidendi: The Court held that the Petitioner, after gifting the OSR Land to the Local Authority, cannot be said to be a person who is interested in the Land allotted for Park. The clear-cut legal position is that after vesting of the 'OSR Land for Park' with the Local Authority, the said Authority is empowered to remove the old buildings therein and the Petitioner has no legal right to stake a claim for restoration of old buildings in the Park area, especially when the fact of the matter is that the old buildings were demolished as 'illegal Developments'.

Final Decision: The Court dismissed the Writ Petition.