[Order of the Court was made by M.SATHYANARAYANAN, J.,] By consent, the writ petition is taken up for final disposal.
2 The petitioner, namely Kottivakkam Vaidehi Nagar Residents Association, represented by its Secretary R.Balaji, Kottivakkam, Chennai 600 041, has filed this writ petition praying for issuance of a writ of mandamus, directing the official respondents to take against the 6th respondent for putting up unauthorised construction and to ensure that the land in Survey Nos.256/2, Kottivakkam Village, Chennai 600 041 forming part of an approved layout bearing Reg.No.LDPM/DDTP/17/68 is maintained as a children's play area and that no plot in the layout is put to any use other than residential use and other consequential reliefs.
3 The President of the petitioner - Association has sworn the affidavit filed in support of this writ petition and he would aver among many other things that the layout of the area was approved 40 years ago by the Directorate of Town and Country Planning, Chengalpet and in case of all layouts, a portion of the layout was reserved for children play area. However, this reservation was not disclosed to the purchasers who were supplied with a photocopy of the layout which did not show about the children play area. The petitioner would further aver that the plot reserved for children's play area has been retained by the 6th respondent namely A.Sonnie George and that he had retained 2 plots (No.29 & 30) in the residential plots and had converted the plots reserved for public purpose illegally. It is further averred by the petitioner that in plot Nos.29 and 30 there is an industrial shed wherein a Food Processing Unit i.e Canning chicken legs, is being carried on for the last one and half years and yet another industrial shed in the children play area where some fabrication work for repairing centering beam was being carried on for over 3 years and also another industrial unit in one part of the above shed, wherein some glass work/ blowing was being carried on, causing much nuisance and health hazardous to the residents of the said Association.
4 The petitioner also invoked the relevant provisions of the Right to Information Act, seeking information/details from the Local Body namely the Chitlapakkam Panchayat Union, about the layout of house sites with LDP No.17/68 and Survey No.256/2 of Kottivakkam Village and during April 2010, there was some inspection carried out by the officials of the 3rd respondent who orally confirmed the residents that no license has been issued for carrying out the commercial activities in the above said plots in question. The petitioner - Association has also sent a representation dated 05.03.2010 to the official respondents pointing out the conversion of area reserved for children play area in to commercial units and prays for appropriate action and further a lawyer's notice dated 29.04.2010 was issued to the 3rd respondent and in response to the same, the 3rd respondent addressed a letter to the 5th respondent requested him to inspect and take necessary action against the unauthorised construction put up in the space meant for children play area and restore the same and accordingly, the CMDA - Planner inspected the area and submitted a report to the 5th respondent stating that Layout was approved by DTCP No.17/68 ; according to the approval, a small portion of the land was left for children play space and on ground, no such space was available and there is an unauthorized construction of factory shed in existence in the name of Sindhu Enterprises.
5 The petitioner - Association has also made a complaint on account of emanation of unbearable stench from the unit which is canning chicken legs and the revenue officials had also conducted spot inspection during June 2010 and recommended for appropriate action under
Section 133 Cr.P.C for the said nuisance. The petitioner expressed his grievance that despite the unauthorized conversion of place reserved for children play area by the 6th respondent and that the same has been utilized for industrial purpose, the official respondents has failed to take action, whatsoever and therefore, the petitioner - Association is constrained to approach this Court by filing a writ petition and prays for appropriate orders.
6 The writ petition was entertained and notices were ordered to the respondents and subsequently, the 7th respondent came to be impleaded on account of the fact that Local Body get merged with the jurisdiction of the Corporation of Chennai and it also appears that the bundles has been misplaced and however, the duplicate copy of the same has been filed and a Note Order has also been placed before the Hon'ble Chief Justice and vide order dated 08.02.2017, the Hon'ble Chief Justice directed the Registry for listing of this case and other connected matters before this Court. Since the original English Bundle relating to this case, remains untraceable, this Court is ratifying the action on the Registry for having accepted the duplicate set of all papers and prepared the English Bundle relating to the present case.
7 The 6th respondent has filed the counter affidavit and took a stand that the writ petition is not maintainable, for the reasons that there is no public interest involved and would further aver that he had purchased the property to an extent of 3.42 acres of land in S.F.No.256/2, Kottivakkam Village, Kancheepuram District from Munirathinammal, Nagammal and Balammal vide Sale Deed dated 14.06.1965 bearing Document No.1797/1965 registered on the file of Sub Registrar, Saidapet and in order to develop and form a layout, the 6th respondent submitted a layout plan consisting of 40 plots with the Commissioner of Panchayat without showing or earmarking any place / land for children play ground and it was not submitted or forwarded to the Department of Town and Country Planning for DTP approval and as such, the layout is well approved for which no gift deed was executed by him in favour of the local authority at any point of time from the year 1968 and as such, the approving authority viz., the 4th respondent as well as the 2nd respondent had no role to play for approving the layout.
8 It is further averred by the 6th respondent that in the year 1968, he had developed the said lands and formed an unapproved layout into 40 housing plots and out of which 36 plots were sold to various individuals and he had retained 4 plots for himself and no place has been earmarked for public space either for children play area or children play ground, thereby, four plots namely Plot Nos.29 & 30 and the plots adjacent to it have been retained by him. The 6th respondent also took a stand that even assuming without admitting that it was approved layout in the year 1968, the so-alled open space earmarked for common purpose/children play area is not utilized in reasonable time and all along, he is maintaining and enjoying the same as no Gift Deed was executed by the 6th respondent and as such, in the absence of any execution of the Gift Deed, the 6th respondent is entitled to right and title over the said plots in question and so far as the superstructure constructed over the said plots is concerned, it is a stand of the 6th respondent that the superstructure was put up 30 years ago for which, all statutory liabilities like Electricity Bill, property tax have been paid and accepted and no one has right to interfere under the guise as if it is marked for children play area and prays for dismissal of this writ petition.
9 The 7th respondent after impleadment, has filed the counter affidavit and would aver among many other things that the layout in Survey Nos.256/2, Kottivakkam Village, Chennai 600 041, forming part of an approved layout bearing registration No.LPDM/DDTP/17/68 consisting 38 residential plots and a children play area, which was developed by the 6th respondent and while developing the layout, the 6th respondent had retained plot Nos.29 and 30 and on the land adjacent to the said plots, which is alloted for children's play ground and subsequently, he had constructed two buildings without obtaining any planning permission from the Local Body/ Kottivakkam Panchayat.
10 It is further averred by the 7th respondent that in the superstructure put up in the building in Plot Nos. 29 & 30, a chicken processing unit was run by the tenant for the purpose of exporting the same and the 6th respondent has also further constructed another building and the same has been leased out to a centering contractor for the purpose of keeping the materials in the building. It is also stated by the 7th respondent that from the chicken processing unit, bad odour emerged and created nuisance to the residence and also the air has been polluted to that effect and the residents were also affected with various health diseases. The 5th respondent based on the complaint received from the residents, issued a notice to the 6th respondent asking him why the unauthorised constructions and illegal construction in the children play area should not be demolished.
11 The 6th respondent filed his response on 09.08.2010 denying unauthorised construction and also took a stand that no construction has been made unauthorisedly and that the alleged Children's play area adjacent to Plot Nos.29 and 30 has not been handed over to the 4th respondent Panchayat. The 7th respondent would further state that the 6th respondent also filed WP.No.15333/2011, challenging the notice dated 26.07.2010 issued by the 5th respondent and it was disposed of by this Court, by directing the said notice to be treated as show cause notice and the 6th respondent herein/writ petitioner therein, was directed to submit his further reply to the impugned notice, with a further direction to the concerned respondent to afford an opportunity of hearing to the petitioner therein and pass a detailed order and in the meantime, status quo as regards possession of the property in question to be maintained and however, the 6th respondent herein did not file any objection as directed in the above said order. It is also averred by the 7th respondent that the superstructures put up by the 6th respondent in the Children Play Area [adjacent to Plot Nos.29 and 30] and in Plot Nos.29 and 30, have been leased out in favour of M/s.Fluid Engineering as well as to M/s.London Bakery. The 7th respondent also proceeded further to state that the construction put up in Plot Nos.29 and 30 is also an unauthorised one and that conversion of space reserved for Children play area, is also an unauthorised one and therefore, issued a notice on 25.03.2017, calling upon the 6th respondent to furnish the approved plan and the 6th respondent herein has failed and neglected to comply with the above said notice and therefore, further action has been taken by issuing a Lock and Seal Notice dated 11.04.2017 and further, De-Occupation Notice was also issued on 18.04.2017 and despite the expiry of time, the 6th respondent has failed to comply with the same and hence, prays for appropriate orders.
12 Mr.T.Mohan, learned counsel appearing for the petitioner has invited the attention of this Court to the affidavit filed in support of WP.No.15333/2011 and would submit that admittedly, the petitioner therein who is arrayed as the 6th respondent herein, took a stand that he had developed the said lands and formed layouts into 38 units/housing plots, for which approval has been sanctioned and permission was granted by the Town Planning Authorities in the year 1968 and after selling them to various individuals, the 6th respondent/petitioner therein, had retained Plot Nos.29 and 30 for him and that he has not executed any Gift Deed and he has also took a further stand that he has not given any possession in favour of the Local Authority and he continues to be in possession and enjoyment of the said place and leased out the same in favour of M/s.Sri Sumathi Associates, who is running a Meat Export business with proper license from the Authorities and whereas, the counter affidavit filed in the present writ petition, the 6th respondent herein / petitioner in WP.No.15333/2011 took a diametrically opposite stand to suit his convenience and need and is to be prosecuted for perjury and that apart, admittedly, he has also encroached the land adjacent to Plot Nos.29 and 30, which is reserved for Children Play Area into his own for commercial use and admittedly, had he also put up unauthoried structures and leased out the same for commercial purposes and one of the units which is running in the said plots/area, is also posing health hazard and as such, immediate action has to be taken to restore the plots and the land meant for Children Play Area for its original use and also orders to be passed forthwith to demolish the unauthorised construction and prays for appropriate orders.
13 Mr.R.Gandhi, learned Senior Counsel assisted by Mr.R.G.Narendiran, learned counsel appearing for the 6th respondent would submit that though in the earlier writ petition in WP.No.15333/2011, the petitioner therein/6th respondent herein took a stand that he has got the approval of the layout, the fact remains that he has not executed any Gift Deed in respect of the open space adjacent to Plot Nos.29 and 30, which is said to have been reserved for Children Play Area and on account of passage of time, the Local Body has no right to claim that it should be used for that purpose. It is the further submission of the learned senior counsel that even in the counter affidavit, in the second writ petition, the 6th respondent took only an alternate plea that if it is an unapproved layout, there is no necessity to execute the Gift Deed, conveying the open space adjacent to Plot Nos.29 and 30 to be used as Children Play Area and on that ground also, the stand taken by the writ petitioner Association is unsustainable. Insofar as the alleged unauthorised constructions/superstructures put up on the said plots and on the Children Play Area are concerned, the 6th respondent herein has originally applied for necessary Planning Permission and even now, it is open to him to invoke the provisions of the Tamil Nadu Town and Country Planning Act, 1971, and go for regularisation and prays for dismissal of this writ petition.
14 The learned standing counsel appearing for the 7th respondent would submit that action has already been taken under the relevant provisions of the Town and Country Planning Act against the 6th respondent herein and due process of law will be followed.
15 This Court has paid its anxious consideration and best attention to the rival submissions and also perused the materials placed before it.
16 It is relevant to extract paragraph No.2 and Ground No.[c] of the affidavit filed by the 6th respondent herein as the writ petitioner in WP.No.15333/2011:-
2 It is submitted that the petitioner purchased an extent of 03.42 acres of land in SF.No.256/2, Kottivakkam Village, Kancheepuram District from Munirathiinammal, Nagammal and Balammal, vide Sale Deed dated 14.06.1965 in Document No.1797/1965 registered on the file of the Sub Registrar Office, Saidapet. In the year 1968 the petitioner had developed the said lands and formed layout into 38 housing plots and for which approval was sanctioned and obtained from Town Planning Authorities in the year 1968 and thereafter sold 36 plots to various individuals retaining Plot Nos.29 and 30 from him. Adjacent to plot Nos.29 and 30 an open space was left by the petitioner which is also in possession and enjoyment of the petitioner since 1968 for over 42 years. The petitioner has been granted with patta in pata No.572 and constructs building in the entire area as early as in 1982 for which all the statutory liabilities like property tax etc, being paid by the petitioner for all these years. It is to be noted that the petitioner has not executed any gift deed nor given possession in favour of any local authority and he is in possession and enjoyment of the plot Nos.29 and 30 and the open space adjacent to plot Nos.29 and 30 apart from plots sold by the petitioner in SF.No.256/2 whereby no one else except the petitioner has any right or control as the petitioner has also been granted patta by revenue authorities.
Ground [c]:- The respondent knowing fully well that the plot Nos.29 and 30 in SF.No.256/2 is an approved layout and the buildings have been constructed thereon about 32 years back in the year 1982 and proper licence has been issued by the authority concern to run the cold storage for which statutory liabilities like property tax etc, being paid. Hence, the impugned order for a building of 32 years old for demolition under the guise of no planning permission has been obtained is highly arbitrary, unreasonable, unjust and illegal. 17 The petitioner in WP.No.15333/2011 / 6th respondent herein has filed a Sworn counter affidavit dated 14.05.2015 and it is relevant to extract the following paragraphs:-
3 At the outset, this writ petition is not maintainable either in law or facts as there is no public interest involved on account of the reasons that the layout as claimed in the writ petition is not an approved one. Actually this respondent has purchased an extent of 3.42 acres of land in SF.No.256/2, Kottivakkam Village, Kancheepuram District from Munirathinammal, Nagammal and Balammal, vide Sale Deed dated 14.06.1965 in Document No.1797/1965 registered on the file of the Sub Registrar Office, Saidapet. It is submitted that in order to develop and form a layout, this respondent submit that the layout plan in the year 1968 consisting of 40 plots with the Commissioner of Panchayat without showing on earmarking any place/land for children play ground and it was not submitted or forwarded to the Department of Town and Country Planning for DTP approval. As such the layout is well approved for which no gift deed was executed by this respondent in favour of local authority at any point of time from 1968. It is further submitted that approving authority is the 4th respondent [Panchayat Union] and not D.D.Town Planning [2nd respondent]. The 2nd respondent had no role for approving the layout.
4 Accordingly, in the year 1968, the respondent had developed the said lands and formed unapproved layout into 40 housing plots and out of which 36 plots were sold to various individuals retaining 4 plots for himself, no place earmarked for public space either for children play area or children play grounds thereby four plots namely Plot Nos.29 and 30 and the plots adjacent to it are retained by this respondent himself. As such the layout as stated in the affidavit is not approved one as any approval whatsoever has been given to layout though it was submitted to the panchayat Union. To put it in nutshell, this respondent sold 36 plots to third parties without approval. As far as the allegations and the contentions with respect to M/s.Sindhu Enterprises and Fabrication Unit, this respondent submits that the said units have already been vacated about 5 years ago even before filing of this writ petition and therefore, the same was highly untenable as no longer in existence.
5 This respondent submits that even assuming without admitting it was approved layout in 1968, the so called open space earmarked for common purpose/children play area is not utilised in reasonable time and all along this respondent was maintaining and enjoying the same as no gift deed was executed by the petitioner. In this context, the Hon'ble Supreme Court in the cases reported in 2005 [III] SCC Page 61 and 2005 [XI] SCC Page 222 held that, the place earmarked for is not used for such public purpose within a reasonable time, then it will be revert back to the original owner as the reservation has lapsed and thereby the original owner is at liberty to use the land for any purpose of his choice. So also in this case, the layout said to have been approved in the year 1968, though this respondent refuted/denied the same, still to say that even assuming to be so the authorities at no point of time had taken any steps to possess the land for maintenance despite the lapse of 46 years and as such, the writ petition is liable to be dismissed. 18 The learned Senior counsel appearing for the 6th respondent for the proposition that even assuming the land is an approved layout, in the absence of execution of Gift Deed within a reasonable time, the land will be reverted back to the developer, has placed reliance upon the following judgments:-
* 2008 [2] MLJ 184 [SB] [K.S.Kamakshi Chetty and Others V. The Commissioner, Aruppukottai Municipality, Aruppukottai and Another] ;
* 2015 [2] Madras Weekly Notes [Civil] 290 [SB] [The Commissioner, Corporation of Chennai, Rippon Buildings, Chennai-600 003 V. Meera SV.Kumar] ; and * The judgment dated 25.08.2011 made in WA.No.1773/2009 [The Commissioner, Aruppukottai Municipality, Aruppukottai Vs.K.S.Kamakshi Chetty and others].
19 A perusal of the above decisions would disclose that the open space for public purpose, has been reserved under the Town Planning Scheme and after taking note of Chapter IV and sections 36 to 40 of the Town and Country Planning Act, 1971, it has been held that if no steps are being taken by the authority to acquire the property, the property is deemed to be released as per Section 38 of the Town and Country Planning Act, 1971. In the considered opinion of the Court, Chapter-IV of the Act as well as the decisions relied on by the learned Senior Counsel appearing for the 6th respondent had no application to the case on hand for the reason that one of the pre-conditions for granting approval for a layout is the space to be provided public area and the 6th respondent who is the writ petitioner in WP.No.15333/2011, admittedly took a stand that he had developed the said land and formed layout into 38 housing plots for which approval was sanctioned and obtained from the Town and Planning Authorities in the year 1968.
20 However, the 6th respondent for obvious reasons, took a diametrically opposite stand in the counter affidavit filed in the present writ petition to the effect that he had developed and formed an unapproved layout into 40 housing plots out of which, he had conveyed 36 plots to various individuals and retained 4 plots and since it is an unapproved layout, there is no necessity or mandate on his part to retain any plots for public purpose. In the considered opinion of the Court, the said diametrically opposite stand taken by the 6th respondent herein, as a petitioner in WP.No.15333/2011 and as the 6th respondent in the present writ petition, is liable to be condemned.
21 The 6th respondent, that apart, had put up unauthorized constructions without any planning permission on the said plots, had granted lease in favour of a Food Processing Unit, viz., Canning Chicken Legs Export Unit and according to the petitioner Association, it emanates foul smell and causes serious health hazard to the residents of the locality and also causing air and other pollutions. In this regard, various representations have been submitted to the concerned statutory authorities and at last, the pachydermic Corporation of Chennai, has woken up from deep slumber and started initiating action.
22 It is pertinent to point out at this juncture that the 6th respondent as writ petitioner in WP.No.15333/2011, made challenge to the notice issued by the Commissioner, St.Thomas Mount Panchayat Union, dated 26.07.2010 in and by which, he was called upon to furnish certain particulars as to the land and buildings in Plot Nos.29 and 30 as well as the children play area in S.No.256/2 and this Court, while disposing of the said writ petition on 01.07.2011, directed that the said notice is to be treated as show cause notice for which, the petitioner therein/6th respondent herein was directed to submit his response, with a further direction, directing the concerned authority to dispose of the same in accordance with law and in the interregnum, directed them to maintain status quo as regards possession. Though the writ petition came to be disposed of as early as on 01.07.2011, the petitioner therein / 6th respondent herein did not comply with the said direction and when the 7th respondent started initiating action, he has submitted his response on 27.08.2012, taking the stand that he has submitted the layout plan for approval and the Joint Director of Town Planning has made some alteration by reducing the number of plots to 38 and the space for children play ground and sent back the same to the 6th respondent herein and the said official asked him to hand over the land for playground to be gifted to the Panchayat Union on a stamp paper in the year 1968 and he has refused to hand over the same and retained it with him and as such, the Panchayat Union has no right to claim any land. It is to be pointed out at this juncture that in the reply dated 27.08.2012, the 6th respondent appears to have taken a stand that the layout is an approved one, which again is a contra stand to the stand taken by him in the counter affidavit filed in the present writ petition. In the considered opinion of the Court, the diametrically opposite stand being taken by the 6th respondent is wholly unsustainable for the reason that once it is an approved layout, he is under obligation to execute the Gift Deed in favour of the Local Body and he cannot use it for another purposes and the Hon'ble Supreme Court in a catena of decisions had laid down the proposition that once the land is reserved for public purpose, it cannot be used for any other purpose.
21 The 6th respondent, on account of the inaction on the part of the official respondents for quite some time, got emboldened and put up unauthorized superstructures without any planning permission/approval and leased out the same for commercial purposes and as already pointed out, one of the commercial entities is using the said land for Chicken Legs Canning Export Process, which according to the writ petitioner Association, is causing health hazard as well as air pollution.
22 The above said acts of the 6th respondent, would per se constitute perjury. However, taking into consideration that he is aged about 88 years and suffering due to prostate cancer, is not inclined to initiate action against him and however, he is warned not to indulge in such a kind of adventurous activities in future and if he does so, the penal and other consequences would follow.
23 This Court has already pointed out that sections 36 to 39 of Chapter IV of the Tamil Nadu Town and Country Planning Act, 1971, has no application to the case on hand and the 6th respondent is also guilty of abusing the process of law. The stand of the 6th respondent that it is an unapproved layout is also unsustainable for the reason that the Joint Director of Town Planning, Chennai, vide LPD/TTDP.No.17/1968 has accorded approval for the said layout.
24 In the result, the writ petition is disposed of and the 7th respondent is directed to take possession of the land which is reserved for children play space as per LPD/TTDP.No.17/1968, which is available at page No.49 of the pleadings set filed on behalf of the writ petitioner and use it for the intended purpose and also take appropriate action with regard to the unauthorized constructions put up in Plot Nos.29 and 30 in accordance with law. The 7th respondent is directed to complete the said exercise within a period of eight weeks from the date of receipt of a copy of this order and communicate the decision taken, to the petitioner as well as to the 6th respondent herein. No costs.
25 List the writ petition on 27.11.2017 for reporting compliance.