IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 12.04.2007
CORAM
THE HON'BLE MR.JUSTICE P.D.DINAKARAN
AND
THE HON'BLE MR.JUSTICE P.P.S.JANARTHANA RAJA
W.A. Nos.156 of 2000 and 45 of 2003
W.A. No.156 of 2000
~~~~~~~~~~~~~~~~~~~
Sri Devi Nagar Residences Welfare Association
a registered Society
regd. No.198/98
rep. by its President G.P.Godhanavalli
residing at No.43
6A 3
M.G.G.Illam
II Street
Sri Devi Nagar
Ganapathy
Coimbatore 641 006. ..Appellant
Vs
1. Subbathal
2. Kamalammal
3. Srimanidevi
4. The Commissioner
Coimbatore City Municipal Corporation
Coimbatore 641 001
5. The Deputy Director of Town and Country Planning
Coimbatore ~ Nilgiri Region
Coimbatore 641 018
(Impleaded by order
dated 3.11.2006 made
in WAMP.1774 of 2006) ..Respondents
W.A. No.45 of 2003
~~~~~~~~~~~~~~~~~~
The Commissioner
Coimbatore City Municipal Corporation
Coimbatore ..Appellant
Vs
1. Subbathal
2. Kamalammal
3. Srimanidevi ..Respondents
Prayer:
Appeals under Clause 15 of the Letters Patent
against the order of the learned Single Judge dated
19.8.1999 made in W.P.No.14413 of 1997.
For Appellant in : Mr.V.Alagirisami, Senior Counsel
W.A.No.156/2000 for M/s.P.K.Rajagopal
For Respondents : Mr.M.Venkatachalapathy
1 to 3 in both
Appeals
For Appellant in : Mr.R.Sivakumar
W.A.No.45/2003 and
4th Respondent in
W.A.No.156/2000
For 5th respondent in : Mr.G.Sankaran
W.A.No.156/2000 Addl. Government Pleader
J U D G M E N T
(Delivered by P.D.DINAKARAN,J.)
Whether a portion of land reserved for public purpose in
a layout approved by the local body can be used for any
other purpose is the specific question that arises for our
consideration in the above appeals, while the issue at large
is whether the land reserved for public purpose in any
layout or in a development plan or master plan can be used
for any other purpose at a later stage?
2. For the purpose of convenience, parties are arrayed
as per their rank in W.A.No.156 of 2000.
3.1. These appeals are directed against the common order
dated 19.8.1999 made in W.P.No.14413 of 1997. W.A.No.156 of
2000 is preferred by the residents of the locality, who have
purchased plots from respondents 1 to 3, who are the legal
heirs of the original owner of the land of an extent of 6.07
acres in Survey No.412, Sreedevi Nagar, Ganapathy,
Coimbatore, which was, concededly, sold under a layout
approved in the year 1974 by the then Ganapathy Town
Panchayat, of course, after the prior permission of the
fifth respondent in his proceedings bearing No.L.P.Dm. (DDT
& CP) No.49/74, dated 17.7.1974. In the said layout, an
extent of 14168 sq.ft. (East West 81.1/2′ on the North, East
West 76′ on the South, North South 164.1/2′ on the West and
North South 171.1/2′ on the East) was reserved for public
purpose.
3.2. While according permission, the fifth respondent,
by his proceedings dated 17.7.1974 addressed to the
Executive Officer, Ganapathy Town Panchayat imposed 13
conditions, which remain unchallenged by the owners of the
layout land for all these years, of which the following are
the relevant conditions to be referred to:
VERNACULAR (TAMIL) PORTION DELETED
Translated version of the above conditions:
1. … without the permission of the Director of Town
and Country Planning, no changes shall be made in the
extent of the plot or no change shall be made in the
place reserved for public purpose.
…
4. … the place reserved for public purpose, as per
the approved layout, shall be used only for the
purpose for which it was earmarked.
…
12. the land owner shall enter into a written
agreement with the local body that he would abide by
the conditions. The plots shall be sold or leased
out subject to the conditions in the agreement. In
order to make the land owner and the purchaser bind
by the conditions laid down in the agreement, the
conditions shall form part of the sale deed.”
(emphasis supplied)
3.3. As the impugned portion of the land, which was
reserved for public purpose, as per the layout referred to
above, was kept vacant, the fourth respondent, by resolution
No.836 dated 16.6.1995, resolved to declare the area
reserved for public purposes so that the Corporation can
provide water supply, drainage, street, lights, etc. A
notification to that effect was issued under Section 459 of
the Corporation Act, published in the Gazette on 30.6.1995,
calling for objection, but no objection was received by the
Corporation. Therefore, a final resolution was also issued
to that effect in resolution 1135, dated 23.11.1996.
3.4. Enraged by the above resolution, respondents 1 to 3
filed O.S.No.759 of 1997 on the file of District Munsif,
Coimbatore for bare injunction, but, finally withdrew the
said suit and filed W.P.No.14413 of 1997 for issue of a writ
of Mandamus forbearing the fourth respondent, his
subordinates, men and servants from in any way interfering
with the peaceful possession and enjoyment of the vacant
land, which was reserved for public purpose, referred to
above.
3.5. In the writ petition, the residents of the
locality, who formed a registered association, by name Sri
Devi Nagar Residences Welfare Association, proposed to
implead themselves as a party respondent by preferring WPMP
No.13730 of 1999 and also contested the writ petition. That
apart, the fourth respondent also resisted the writ
petition. After hearing all the parties, the learned Single
Judge, by order dated 19.8.1999, refused to permit the
residents of the locality to implead themselves as party in
the writ petition holding that they are not necessary
parties for the disposal of the writ petition. However, on
the merits of the case, the learned single judge held that
the order was subject to the undertaking given by the
learned counsel for respondents 1 to 3 that they would
utilise the land only for public purpose. However, it was
made clear that the said order, in any way, would not relate
to the roads if they had been declared as public by the
fourth respondent.
3.6. Aggrieved by the said order of the learned Single
Judge dated 19.8.1999, both the Residences Welfare
Association and the Corporation have filed these appeals
respectively, necessitating us to decide on the issue
referred to above.
4. It is not in dispute that in discharging the
obligation, the original owner of the land sought for the
approval of layout of the land in question by the then local
body, Ganapathy Town Panchayat, for selling the sites for
construction of buildings and the layout was approved by the
fifth respondent by proceedings dated 17.7.1994 referred to
above.
5. It is a settled law that the object of approving the
layout, before converting the land into house sites, is to
regulate the development in the locality so as to secure the
present and future inhabitants sanitary conditions, amenity
and convenience, with the prior permission of the fifth
respondent. The approval of the lay out, is, therefore,
intended to secure amenity and convenience to the present
and future residents in connection with laying out and use
of lands. Therefore, regard is to be had in the making of
a clear Town Planning in the locality to the laying out and
use of neighbouring lands as well as to that of the land
which is the actual subject matter of the layout. The result
should be that as successive areas are developed, they
should fit into one another and eventually form a harmonious
whole. One of the most important things for consideration
in the preparation of the layout is not only formation of
roads, but also utilisation of the lands reserved for public
purpose.
6.1. The public purpose, of course, cannot and should
not be precisely defined and its scope and ambit be limited.
The public purpose is not static. It changes with the
passage of time, need and requirement of the community. But,
broadly speaking, public purpose means the general interest
of the community, as opposed to the interest of an
individual.
6.2. The expression “public purpose” is not capable of
a precise definition and has not a rigid meaning. It can
only be defined by a process of judicial inclusion and
exclusion. In other words, the definition of the expression
is elastic and takes its colour from the statute in which it
occurs, the concept varying with the time and state of
society and its needs. Whatever furthers the general
interests of the community as opposed to the particular
interest of the individual must be regarded as a public
purpose. With the onward march of civilization our notions
as to the scope of the general interest of the community are
fast changing and widening with the result that our old and
narrower notions as to the sanctity of the private interest
of the individual can no longer stem the forward flowing
tide of time and must necessarily give way to the broader
notions of the general interest of the community. The
emphasis is unmistakably shifting from the individual to the
community. The words “public purposes” used in Article
23(2) indicate that the Constitution uses those words in a
very large sense. In the never-ending race the law must keep
pace with the realities of the social and political
evolution of the country as reflected in the Constitution.
If, therefore, the State is to give effect to these avowed
purposes of our Constitution we must regard as a public
purpose all that will be calculated to promote the welfare
of the people as envisaged in these directive principles of
State policy whatever else that expression may mean, vide
State of Bihar v. Kameshwar Singh, AIR 1952 SC 252.
6.3. It is impossible to precisely define the
expression “public purpose”. In each case all the facts and
circumstances will require to be closely examined in order
to determine whether a “public purpose” has been
established. Prima facie the Government is the best judge
as to whether “public purpose” is served by issuing a
requisition order, but it is not the sole judge. The Courts
have the jurisdiction and it is their duty to determine the
matter whenever a question is raised whether a requisition
order is or is not for a public purpose, vide State of
Bombay v. R.S.Nanji, AIR 1956 SC 294
7. In G.N. Khajuria (Dr) v. Delhi Development
Authority, (1995) 5 SCC 762 = AIR 1996 SC 253, where in a
land reserved for public park in the approved layout plan of
a residential colony, when an unauthorised allotment was
given to the school, the Apex Court heavily came down
against the Officer, who by misusing his power made
unauthorised allotment and permitted unauthorised
construction, and held that such reallotment is not only
illegal but also unlawful.
8. In Bangalore Medical Trust vs. B.S.Muddappa, 1991 (4)
SCC 54, Justice R.M.Sahai, held Public park as a place
reserved for beauty and recreation was developed in 19th and
20th century and is associated with growth of the concept of
equality and recognition of importance of common man.
Earlier it was a prerogative of the aristocracy and the
affluent either as a result of royal grant or as a place
reserved for private pleasure. Free and healthy air in
beautiful surroundings was privilege of few. But now it is
a, `gift from people to themselves’. Its importance has
multiplied with emphasis on environment and pollution. In
modern planning and development it occupies an important
place in social ecology. A private nursing home on the other
hand is essentially a commercial venture, a profit oriented
industry. Service may be its motto but earning is the
objective. Its utility may not be undermined but a park is a
necessity not a mere amenity. A private nursing home cannot
be a substitute for a public park. No town planner would
prepare a blueprint without reserving space for it. Emphasis
on open air and greenery has multiplied and the city or town
planning or development Acts of different States require
even private house owners to leave open space in front and
back for lawn and fresh air. In 1984 the B.D. Act itself
provided for reservation of not less than 15 per cent of the
total area of the layout in a development scheme for public
parks and playgrounds the sale and disposition of which is
prohibited under Section 38-A of the Act. Absence of open
space and public park, in present day when urbanisation is
on increase, rural exodus is on large scale and congested
areas are coming up rapidly, may give rise to health hazard.
May be that it may be taken care of by a nursing home. But
it is axiomatic that prevention is better than cure. What is
lost by removal of a park cannot be gained by establishment
of a nursing home. To say, therefore, that by conversion of
a site reserved for low lying park into a private nursing
home social welfare was being promoted was being oblivious
of true character of the two and their utility.
9. Again in Pt.Chet Ram Vashist v. Municipal Corporation
of Delhi 1995 (1) SCC 47, the Apex Court while dealing with
the portion of the land which was reserved for public
purpose has clearly laid down the law as hereunder:
” 6. 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 may result in creating an
obligation in nature of trust and may preclude the
owner from transferring or selling his interest in
it. It may be true as held by the High Court that the
interest which is left in the owner is a residuary
interest which may be nothing more than a right to
hold this land in trust for the specific purpose
specified by the coloniser in the sanctioned layout
plan. But the question is, does it entitle the
Corporation to claim that the land so specified
should be transferred to the authority free of cost.
That is not made out from any provision in the Act or
on any principle of law. The Corporation by virtue of
the land specified as open space may get a right as a
custodian of public interest to manage it in the
interest of the society in general. But the right to
manage as a local body is not the same thing as to
claim transfer of the property to itself. The effect
of transfer of the property is that the transferor
ceases to be owner of it and the ownership stands
transferred to the person in whose favour it is
transferred. The resolution of the Committee to
transfer land in the colony for park and school was
an order for transfer without there being any
sanction for the same in law.
…..
8. For these reasons even though the judgment and
decree of the High Court are liable to be set aside
but we refrain from doing so. Yet in order to protect
interests of the owners of house and residents of the
colony it is directed that the order of the High
Court shall stand modified to the following effect :
(1)The Corporation shall have right to manage the
land which was earmarked for school, park etc.
(2)The Corporation shall not have any right to
change the user of land which shall be for
beneficial enjoyment of the residents of the
colony.
(3)It is left open to the Corporation to get the
land transferred in its favour after paying the
market price as prevalent on the date when the
sanction to the layout plan was accorded. ”
(emphasis supplied)
10. We, therefore, appreciate the interest of the
residents of the area, who have purchased the plots as per
the approved layout, that for the benefit of the ecology,
certain areas should be earmarked for garden and park so as
to provide fresh air to the residents of that locality. To
that extent, we disagree with the learned Single Judge that
the residents of the locality are not necessary parties for
the simple reason that respondents 1 to 3 have got the
layout approved, as per the proceedings dated 17.7.1994,
with the specific conditions, referred to above, which
becomes the part and parcel of the terms of the sale deeds.
Therefore, virtually, these conditions, agreed by the land
owner become the terms of covenant. Therefore, it would be
too harsh to say that the residents of the locality are not
proper parties.
11. 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. It is for the health and well-
being of the inhabitants of the residential area. The same
cannot be bartered for any other purpose. Apart from that,
in view of the conditions imposed by the fifth respondent,
by his proceedings dated 17.7.1974 addressed to the
Executive Officer, Ganapathy Town Panchayat, which remain
unchallenged by the owners of the layout land for all these
years, the fourth respondent is estopped from using the area
set apart as open space, for any other purpose.
12. Where open space for construction of public park is
preserved and earmarked in the Plan for Development of a
planned town, the Authorities cannot ignore or neglect to
develop that open space into a public park within reasonable
time. Unless an open space reserved for a public park is
developed as such, the execution of the plan will remain
incomplete. Buildings, as proposed in the plan, may have
come up, amenities and civic amenities may have been
provided and the people may have started living in the
colony, yet the plan cannot be said to have been fully
executed, if an open space meant for a park is not developed
as such. The duty of the authorities is to implement the
plan in entirety making the area beautiful with attractive
public parks. Their job is not over when the area becomes
habitable.
13. Good parks expansively laid out are not only for
aesthetic appreciation, but in the fast developing towns
having conglomeration of buildings, they are a necessity. In
crowded towns where a resident does not get anything but
atmosphere polluted by smoke and fumes emitted by endless
vehicular traffic and the factories, the efficacy of
beautifully laid out parks is no less than that of lungs to
human beings. It is the verdant cover provided by public
parks and greenbelts in a town, which renders considerable
relief to the restless public. Hence the importance of
public parks cannot be under-estimated. Private lawns or
public parks are not a luxury, as they were considered in
the past. A public park is a gift of modern civilization,
and is a significant factor for the improvement of the
quality of life. Open space for a public park is an
essential feature of modern planning and development, as it
greatly contributes to the improvement of social ecology.
14. We are therefore, of the firm opinion, that the
statutes in force in India and abroad reserving open spaces
for parks and play grounds are the legislative attempt to
eliminate the misery of disreputably housing condition
caused by urbanisation. Crowded urban areas tend to spread
disease, crime and immorality. Reservation of one space for
parks and play ground is universally recognised as a
legitimate exercise of statutory power rationally related to
the protection of the residents of the locality from the ill-
effects of urbanisation and the Apex Court decisions
referred supra, fully support the view that the area set
apart for park as per the approved lay out plan, cannot be
used or transferred for any other purpose.
15. Mr.M.Venkatachalapathy, learned senior counsel
appearing for respondents 1 to 3, however, agreed that the
area reserved for public purpose would not be used for any
other purpose and has come forward to maintain a park in
the said place.
16. In view of the above undertaking by
Mr.M.Venkatachalapathy, learned senior counsel appearing
for respondents 1 to 3, we pass the following directions:
(i) respondents 1 to 3 shall utilise the entire area
reserved for public purpose within a maximum period
of six months from the date of receipt of copy of
this order;
(ii) if respondents 1 to 3 could not maintain the
park within the time stipulated above, the
Corporation, as a custodian of public interest, shall
develop the area as a Park with the cooperation of
respondents 1 to 3, with whom the title and
possession would continue to remain;
(iii) the Corporation shall not collect any
property tax;
(iv)the Corporation shall give access to the general
public including the residents of the locality; and
(v) the Corporation is at liberty to collect
necessary funds from the plot owners, who purchased
the plots in the impugned layout for maintenance of
the park.
17. We also direct the Chief Secretary, Local
Administration Department, State of Tamil Nadu to
communicate the copy of this order to all the local bodies
to scrupulously apply and follow the above directions to all
the layouts sanctioned or to be sanctioned. If there is any
change or deviation in the purpose by the land owners or by
any third party, the same shall be objected to and action
shall be initiated as indicated above by the local body
concerned.
For the reasons aforesaid, we hold that a portion of
land reserved for public purpose in a layout or in a
development plan or master plan approved by the local body
cannot be used for any other purpose than the one specified
therein. These appeals are ordered accordingly. No costs.
kpl/sasi
To:
1. The Commissioner
Coimbatore City Municipal Corporation
Coimbatore 641 001
2. The Deputy Director of Town and Country Planning
Coimbatore~Nilgiri Region
Coimbatore 641 018