PRAYER: Writ Petition filed under Article 226 of the Constitution of India, praying to issue a Writ of Mandamus, directing the respondents 1 to 6 to carry out the maintenance and renovation work in respect of the park situated in Survey Nos.184/1, 184/2 in Ward No.23, Sembaruthi Nagar (previously known as Meiappan Nagar), Vilangudi, Madurai Corporation and consequently for a direction, forbearing the respondents 7 to 9 from encroaching the common area earmarked as Park in Survey Nos.184/1, 184/2, in Ward No.23, Sembaruthi Nagar (previously known as Meiappan Nagar), Vilangudi, Madurai Corporation.
!For Petitioner : Mr.T.Lajapathi Roy For Respondents 1 to 6 : Mr.T.S.Mohammed Mohideen Additional Government Pleader For Respondents 7 to 9 : Mr.G.Prabhu Rajadurai W.P.(MD)No.21717 of 2016:
Deivanaiammal, W/o. late Pitchaimuthu, Vilangudi Village, Madurai North Taluk, Madurai District, Rep. by her power of Attorneys,
1.A.Boominathan
2.Charles Selvaraj : Petitioner Vs.
1.The Commissioner, Madurai Corporation, Madurai.
2.The Director, Town and Country Planning Department, No.807, Annasalai, Chennai ? 600 002. : Respondents PRAYER: Writ Petition filed under
Article 226 of the Constitution of India, praying to issue a Writ of Mandamus, forbearing the respondents from entering the property of the petitioner in Survey No.184/1 & 2, in Vilangudi Village, Madurai District without acquiring the same in the manner known to law.
[Order of the Court was made by G.R.SWAMINATHAN, J.] W.P.(MD)No.5632 of 2017 has been filed by Sembaruthi Nagar Veetu Urimaiyalargal Matrum Kudiyirupor Nala Sangam, represented by its Secretary Mr.A.Sakthivel. The said association is said to have been formed for the welfare of the residents of the Sembaruthi Nagar situated in Ward No.23, Vilangudi, Madurai Corporation. The said area was previously known as Meiappan Nagar. The layout was formed after due approval. In the approved layout, the lands in Survey Nos. 184/1, 184/2 in Ward No.23, Vilangudi, Madurai Corporation were shown as areas earmarked as parks ie., places reserved for public utility.
2.Since the said area earmarked as parks were not handed over by the layout promoters, the local body also did not take over the same. This appears to have been taken advantage of by certain private individuals who claimed that they are the owners of the said lands and attempted to encroach the said common place reserved as parks. This was resisted by the writ petitioner association. The writ petitioner appears to have instituted more than one proceeding on the earlier occasions. The writ petitioner association moved this Court by filing W.P.(MD)No.11221 of 2012 and this Court gave a direction for taking appropriate action in the matter.
3.Notwithstanding the efforts taken by the local body, the said park areas were attempted to be encroached upon by the said individuals. Therefore, the present writ petition has been filed for a direction to the authorities to maintain the said areas as parks. And direction has also been sought for restraining the private respondents herein from committing encroachment upon the said park areas.
4.W.P.(MD)No.21717 of 2016 has been filed by one Boominathan and Charles Selvaraj, claiming to be the power of attorneys of one Deivanaiammal. According to the deponent of the affidavit, the property bearing Survey Nos.184/1 and 184/2 measuring 2.20 Acres, originally belong to one Muthukaruppathevar and his wife Nallaperumal Ammal and that by the settlement dated 14.12.1966, the property came to be settled in favour of their son Pitchaimuthu and his wife Deivanaiammal, the first petitioner herein.
5.It is admitted that in the year 1992, the owners of the said property prepared a layout and the same was approved by the competent authority. As per the approval, the layout comprised of sites, shop sites, road portions as well as parks. The plots were sold away to various persons. The road portions were gifted to the Local Body. But the areas earmarked as parks were still held by the original owner. The park areas were never handed over to the Local Body. Therefore, it continues to remain as private property. Since the authorities were attempting to take over the same, W.P.(MD)No.21717 of 2016 came to be filed for restraining the authorities from entering the property in S.No.184/1 and 184/2, Vilangudi Village, Madurai. According to the writ petitioners in W.P.(MD)No.21717 of 2016, the said property continues to remain as a private property and that it is open to the authorities to take over the same only after acquiring the same in the manner known to law.
6.Heard the learned counsel for the writ petitioners as well as the official respondents.
7.It is beyond dispute that the property in question was developed by the original owners by preparing a layout and submitting the same for approval to the planning authority. It is also admitted that the layout approval was granted and that areas were earmarked for common purposes as roads and parks. Such areas would cease to be the private property of the promoter, the moment layout approval is accorded. In fact, approval is granted for the layout submitted by the promoter only by taking into account such earmarking of areas for common purposes. Hence, the promoter of the layout is estopped from staking any claim over such areas earmarked for public purposes.
8.In the present case, even according to the writ petitioners in W.P.(MD)No.21717 of 2016, there were earmarking of areas for parks. Merely because the land owner failed to execute a formal gift deed, conveying the same to the local body, it would not mean that it is open to the developer / promoter to claim that it would continue to be a private property. The layout was approved wayback in 1992. It is unfortunate that after twenty five years, the land owners or persons claiming to be the representatives of the land owners are resisting the attempt of the local body to take over the sites earmarked as parks.
9.Mr.Prabhu Rajadurai, learned counsel appearing for the writ petitioner in W.P.(MD)No.21717 of 2016, placed reliance on the decision of the Supreme Court reported in AIR 1994 SC 2550 (Yogendra Pal Vs. Municipality, Bhatinda and another). In the said decision, the statutory provision providing for compulsory transfer of land to the local body without payment of compensation was held to be violative of
Article 14 of the Constitution of India. The factual position obtaining in the case on hand is different. It is the land owner who moved the planning authority seeking approval for the layout in which places have been earmarked for roads and parks which are meant for common use. Having done so, it is the duty of the land owner to strictly abide by the conditions subject to which layout was approved. If there was no earmarking of the land for parks etc., even approval would not have been given for the layout. Therefore, there is no merit in the contention raised by the learned counsel for the writ petitioner in W.P.(MD)No.21717 of 2016 that on account of the non-execution of any gift deed for the areas earmarked, the said areas would continue to remain with the land owner.
10.In view of the foregoing discussions, W.P.(MD)No.21717 of 2016 is dismissed and W.P.(MD)No.5632 of 2017 is allowed, with a direction to the Madurai Corporation to maintain the areas earmarked in the Survey Nos.184/1, 184/2 in Ward No.23, Vilangudi, Madurai Corporation as parks. The respondent 7 to 9 in W.P.(MD)No.5632 of 2017, are hereby restrained from committing any encroachment in the common area earmarked as parks.
11.In the result, W.P.(MD)No.5632 of 2017 is allowed and W.P.(MD)No.21717 of 2016 is dismissed. No costs. Consequently, connected miscellaneous petitions are closed.
To
1.The Secretary, State of Tamil Nadu, Department of Housing and Urban Development, Fort St.George, Chennai ? 600 009.
2.The Director of Town and Country Planning Department, O/o. The Director of Town and Country Planning, Opposite to LIC, Chengalvarayan Building, Fourth Floor, No.807, Annasalai, Chennai ? 600 002.
3.The Deputy Director of Town and Country Planning, O/o. The Deputy Director of Town and Country Planning, Hakkim Amalkhan Road, Chinna Chokkikulam, Madurai ? 625 002.
4.The District Collector, Madurai District, Madurai.
5.The Commissioner, Madurai Corporation, Madurai.
6.The Member Secretary, Local Town Planning Authority, 3rd Floor, Madurai Corporation Building, Tallakulam, Madurai ? 625 002.
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