Krishna Nagar Residents Welfare, Association and others vs The Director of Town and Country Planning. Madras -2, The Deputy Director of Town and Country Planning, Vellore, The Commissioner, Vellore, Municipality, Vellore, K.T. Habuhunnissa Begum

K.P. Sivasubramaniam, J.—In this writ petition, the writ petitioner prays for a writ of certiorarified Mandamus to call for the records of the Deputy Director of Town and Country Planning, Vellore in his letter dated 18-11-1980 and the consequent permission granted by the third respondent by their letter dated 27-7-1983 and to quash the same and further restrain the 4th respondent from constructing a Community Hall in the place of park in T.S. No. 106 (Part), Sankaranpalayam, Vellore. According to the petitioner, he is the Secretary of the petitioner Association which is registered under the Societies Registration Act. The fourth respondent was the original owner of the land to an extent of 2.9 acres. The Government approved the Sankaranpalayam Town Planning Scheme, under the Tamil Nadu Town and Country Planning Act 1971. The fourth respondent prepared a Layout for her lands consisting of 19 plots and a park on the extreme north-west of the land. The Lay out was approved in the Year 1972 by the second respondent. On the basis of the approval, the fourth respondent sold out the plots to various persons, who are all members of the first petitioner''s Association. The petitioner further submitted that the park referred in the Layout had trees and well at the time of the approval of the Lay out. The park is used not only by the elders but also by the children for their recreation. The park is in an area of 5300 sq.ft. During the second week of March 1994, the fourth respondent through her men removed the plants and cut the trees. Though the plot owners including the second petitioner had objected the conduct of the fourth respondent, without any proper reply, the work proceeded further. Therefore, they filed a suit through their Association in O.S. No. 380/1994 before the District Munsif Court, Vellore. In the written statement, the fourth respondent contended that she obtained as early as in year 1979 permission for modification of layout by converting the park into a Community Hall from the second respondent. The third respondent also granted permission to change the plan accordingly and therefore she had commenced the construction of Kalyana Mandapam in the year 1994. Therefore, the learned District Munsif held that Civil Court could not go into the question of validity of the order passed by the second respondent and hence dismissed the I.A. for interim injunction. Thereafter, the petitioners have filed this writ petition.

I have heard the learned counsel for the petitioner. According to him, the conversion was totally unauthorised. Sanction for layout plan is granted only on the representation made by the promotor and it is not open to the authorities to convert the purpose for which the various areas are allotted such as park, play fields and other areas earmarked for common purposes. The fourth respondent had no right to seek to convert the park and to construct the Community Hall. The impugned order is also illegal since after passing of the Environment (Protection) Act, 1986, the obligation is to maintain and protect environment and no notice was given to any of the members of the colony. Therefore, the order passed by the authorities are liable to be set aside.

I have also heard the learned counsel appearing for fourth respondent. According to him, the property never became vested with the local authority and it is not also notified in terms of the Tamil Nadu parks, play Fields and open space (Preservation and Regulations) Act 26 of 1952. The question of invoking the provision of the said Act had applied only if the park is notified in the said act and therefore there was no obligation on the part of the owners of the lands to seek for conversion to the authorities. The authorities had properly considered the application filed by the petitioner and after being satisfied, the permission was granted. Therefore, it is not open to the respondents to question the conversion as ordered by the Government.

The learned counsel further contends that the possession of the area was always with the petitioners. In fact, the Civil Court itself has found that the possession was with the fourth respondent. The learned counsel also took me through the various portions of the order of the Civil Court and would contend that the Civil Court finding had become conclusive and it was not open to the petitioners to canvass as against the findings rendered by the Civil Court. The learned counsel also contends that the action of the respondents is vitiated by laches. The permission was granted in the year 1980 and the planning permission was sanctioned in the year 1983 and the petitioners have approached the Civil Court as well as this Court in a belated manner and therefore the action was vitiated by laches. Therefore, this writ petition is liable to be dismissed for laches.

I have also heard the learned Additional Government Pleader. She pleads that though in the layout plan the disputed portion was earmarked for park and it was in terms of the Act, it was not notified and thus continuously belonged to the owner and therefore, the permission was rightly granted.

I have considered the submissions of all the parties.

It is not disputed that in the layout plan, the disputed property has been shown as a park. Therefore, there can be absolutely no justification on the part of the fourth respondent to claim the property as her own nor is it open to the authorities to concede such a demand. It may be open to the Town Planning authorities to convert the use of the land for any other public purpose other than purpose for which the land was earmarked. Normally, a park can be converted into a place for hospital, school or Kalyana Mandapam etc for common use. The purpose should continue to remain only as public and for the benefit of the entire colony. But in the present case, the attempt is to convert the property as belonging to the fourth respondent herself which is definitely not permissible. The very lay out is sanctioned and granted only on the understanding that all the places marked as common would continue to remain as common and no individual like the fourth respondent can claim ownership of the property, which is sought to be done in the present case and which has also found acceptance by the public authorities namely respondents 1 to 3. I am unable to sustain the said claim on the part of the fourth respondent that she is entitled to have property to be converted to her own use. Otherwise, there is no purpose in submitting a lay-out plan and the Government sanctioning the lay out plan subject to the requirements being satisfied. The learned counsel for the petitioner has rightly relied on the Judgment of Supreme Court in Pt.Chet Ram Vashist (Dead) by Lrs. v. Municipal Corporation of Delhi (1995) I S.C.C.47). The Supreme Court has held that

"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 would create an obligation in nature of the trust and may preclude the owner from transferring or selling his interest in it".

Therefore, the attempt on the part of the fourth respondent to assert the title over the property and rights over the property to utilise the property in any manner she likes in order to get income from the property cannot at all be accepted. Therefore, permission granted by the respondents 1 to 3 in this context is totally illegal and cannot be sustained.

I am unable to accept any of the other submissions made by the learned counsel for the fourth respondent. It is true that the Civil Court has found in favour of the petitioners as regards the possession of the property. The fact that the petitioner continues to be in possession of the property alone cannot entitle the fourth respondent or other respondents to convert the use as against the purpose for which the lay out plan was sanctioned. Even assuming that the petitioner was in possession, as pointed out by the Supreme Court, supra, the owner would be holding it only for the benefit of the residents.

I am also not impressed about the point raised by the learned counsel for the respondent as regards laches. There is no way of the petitioners knowing about the orders obtained by the fourth respondent behind back of the petitioners. It appears that it was only in the year 1994, the fourth respondent had commenced the construction and immediately thereafter, the petitioner had approached the Civil Court as well as this Court subsequently. Therefore, there is no question of any laches on the part of the petitioners. With the result, I am unable to sustain the impugned order and accordingly this writ petition is allowed as prayed for. No costs. Consequently, connected W.M.P. Nos. 11377 and 19422 of 1995 are closed.