The petitioner has come up with this Writ Petition seeking a direction to the respondents to hand over the OSR land, measuring 100 sq. mtrs situated in Survey No.321/45 part, Block 10, Triplicane Taluk, to her and for a consequential direction to the 2nd respondent to permit her to maintain the said OSR land.
2. According to the petitioner, she constructed a building at No.163, Anna Salai, Chennai 600 002 and a Completion Certificate vide C.C.No.EC/South/126/2009 dated 16.09.2009 was issued to her. In order to get sanction from the CMDA authorities, an area of 100 sq. mtrs. had to be handed over to the Corporation of Chennai under the nomenclature of Open Space Reservation Area, as per Rule 19 of the Development Control Rules for Chennai Metropolitan Area. It is her case, that in order to get permission to construct a building, an applicant must surrender 10% of the land, if the said land is in excess of 3,000 sq. mtrs. The 10% of the excess of 3,000 sq. mtrs would have to be handed over to the Corporation of Chennai through a Gift Deed and the petitioner has done so, insofar as her case is concerned. It is the case of the petitioner that if the 10% rule is applied, the petitioner have to hand over only 80 square meters, but the authorities wrenched 100 square meters from the petitioner.
3. She further submitted that the tenants of the building are very reputed Multinational Companies, viz. City Bank and McKinsey Company Inc. and they are bitterly complaining about the bad odour that emanates from the rubbish and flies and mosquitoes which swarm over the building. According to the petitioner, the intended purpose of keeping the land for communal and recreational purposes had not been met. The grievance of the petitioner is that Rule 19 of the Development Control Rules for Chennai Metropolitan Area, should not have been made applicable in her case, as the area surrendered is very small, making it impossible for the Corporation of Chennai to look after it with responsibility and care.
4. Heard the learned counsel on either side and perused the material documents available on record.
5. Today, when the matter is taken up for hearing, learned counsel for the petitioner represented that the land gifted by means of the aforesaid Gift Deed has not been maintained properly and photographs have been produced by the petitioner to show that the place gifted is in a shabby condition. But, the 2nd respondent/Corporation produced photographs of the land in question to show that the place is neat and clean.
6. It appears that after the matter was taken by this Court, the Corporation officials have taken steps to clean the land in question, which was in a shabby condition, thereby causing disgrace to the owner of the land, who gifted it to the Corporation.
7. After detailed arguments, learned counsel for the petitioner submitted that he would restrict the prayer sought in the Writ Petition to the extent that the land may be permitted to be maintained by the petitioner and he has also filed an affidavit of the petitioner before this Court, to that effect. Relevant portion of the said affidavit, dated 22.07.2017 reads thus:
"3. I submit that I have made an application to the Corporation of Chennai regarding the Open Space Reservation area situated at Smith lane, Anna Salai, Chennai 600 002 on 29.02.2016. I propose to keep the said Open Space Reservation (OSR) area absolutely free of building and structures. I assure the authorities that I will not put up any structures or construct any building in the said Open Space Reservation (OSR) area. I would plant some shaddy tree/trees saplings in that area as and when required. Hence, I am constrained to file the present affidavit in the above Writ Petition before this Hon'ble Court."
8. In reply, learned counsel appearing for the 2nd respondent/Corporation submitted that the gifted land cannot be conveyed. However, he has filed an affidavit that the Corporation is willing to grant permission to the petitioner in order to maintain the OSR land in question. For better appreciation of the case, relevant paragraphs of the counter affidavit filed by the respondent/Corporation are extracted hereunder :
"6. I respectfully submit that the Gift Deed was executed by the petitioner on behalf of Late Sri.Muthukumarasamy, as a general power of attorney in favour of CMDA in Gift Deed No.76/2003, dated 13.01.2003. The gifted land area is 100 square meter situated in 164, Anna Salai, in R.S.No.321/45 part, Block No.10, Triplicane, Village, Anna Salai. The Chennai Corporation reserves the OSR land for general public usage.
7. I respectfully submit that at present the OSR land is under the possession of Chennai Corporation and the proposal for forming a park for the use of general public in that local area. The process for initiating the park is in progress and there is no wastage dumped in the OSR land as alleged by the petitioner herein. The right of the OSR land vested with Chennai Corporation. The Chennai Corporation already secured the land and it will be used for public usage by all means.
8. I respectfully submit that the officials of Chennai Corporation duly inspecting the suit site on regular basis. If any illegal encroachment found in the suit site or if anybody dumped the wastage in the OSR land as alleged by the petitioner, action will be initiated by the Chennai Corporation officials as per due process of law."
9. In view of the above, as the petitioner has assured that she will not construct any building in the open space and is willing to plant tree saplings in that area as and when required and that she agreed to abide by the conditions stipulated by the Corporation, from time to time, this Court directs the petitioner herein to keep the open space area gifted to the 2nd respondent/Corporation, absolutely free from buildings and structures and ensure that no construction is carried in the open space at any point of time. The petitioner is at liberty to plant small plants and shrubs in the open space.
10. Before parting with the judgment, this Court would like to observe about the Five Elements (Panchabootham) concept, which is as follows:
"Environmental degradation and global warming are making a havoc in the world at present. In this juncture, the organs of the State should unite to serve the purpose. Open Reserved Spaces are mandatory for the reasons well known. In consideration of the over growing population and cramped urban areas, it is, but necessary for us to abide by the rules and regulations strictly under the law, which is in time being in force.
Our tradition and values which are being passed from our ancestors are not wrong beliefs. They are scientific, rational and logical. That is why they worshipped nature. Even now, many of them who follow our ancestral beliefs continue to do so as it has got abundant sanctity. They worshipped trees, Bhoomi the soil, sun-the fire, rivers water, and sky- the space and Vayu the Air. It is not at all irrational. When it gets the sanctity, it will not be ruined. Religious beliefs are rather protective of human civilization and the environment. People will never alter their religious beliefs. Thus, nature was protected in those days. In the name of rationality, the religious taboos were violated, the result of which we suffer these days. If all of us had followed our ancestors, we would not have been pushed to this disastrous situation. As the concept of pancha bhootham goes, all the elements which are present in the human body are present in our planet earth. Proper utilization of all the elements need for a human body, so also for the nature too.
Earth, our bhoomi, the land reserved for open space, park, etc. should not be dug for sand and hence the land, soil could be protected. Open space serves a purpose to move around freely, helps to promote health of the people by helping them walk freely, promotes oxygen inhalation, lessens pollution, protects nature.
Trees and plants give out fresh oxygen taking in the carbondioxide. Parks protect nature, lessens pollution, prevents soil erosion, etc., thereby providing the vital element of panchabhootham.
There is nothing to say about water, as everyone of us are undergoing acute water shortage. We know the importance of something only if we are denied of it. All rivers were worshipped in earlier days. They knew its importance and hence did not pollute it. Rain water harvesting is mandatory for any open reserved space. To save water, all OSR should have a catchment area or atleast a rain water harvest.
Sun is our saviour. Sun, the ball of fire is the very cause of our survival in earth. This only source of Vitamin D, if utilized at the optimum level, not only promotes health but also reduces global warming to a great extent and also reduces pollution. Lights in any OSR lands should be from the solar power. The source of any electrical item in OSR should be from solar power only.
Space is the secret of successful living in this planet. Without space, we are devoid of all the other four elements and hence the importance of space matters a lot.
Development should not amount to degradation of the environment. Sustainable development is what is required."
11. Last, but not the least, it is worth referring to a decision of the Apex Court, in the case of Bangalore Medical Trust v. B.S. Muddappa, 1991 (4) SCC. 54, wherein, it is held as under:
"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."
With the above direction and observation, this Writ Petition stands disposed of. It is made clear that if the petitioner had sought for re-conveyance, this Court would not have granted the relief sought for in this Writ Petition. No costs.