Madras High Court
V.Jeevanandam vs The District Collector on 25 June, 2021
W.P. No.19490 of 2018
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 25.06.2021
CORAM :
THE HONOURABLE MR.JUSTICE N.KIRUBAKARAN
AND
THE HONOURABLE MRS.JUSTICE T.V.THAMILSELVI
W.P. No. 19490 of 2018
and
W.M.P. No. 22930 of 2018
V.Jeevanandam ...Petitioner
Vs
1. The District Collector
Coimbatore District
Coimbatore.
2. The Commissioner
Coimbatore City Corporation
Coimbatore-1.
3. The Assistant Commissioner
North Zone
Coimbatore City Corporation
Coimbatore.
4. The Executive Engineer (Project)
Coimbatore Corporation
Coimbatore – 641 001.
1/14
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W.P. No.19490 of 2018
5. The Member Secretary
Local Planning Authority
Coimbatore. ... Respondents
[R5 suo motu impleaded]
PRAYER : Writ Petition filed under Article 226 of the Constitution of India,
1950, praying to issue a Writ of Certiorarified Mandamus, to call for the records
pertaining to the impugned order passed by the Fourth Respondent herein in G.No.
61911/2018M.H.6, dated 23.07.2018 and quash the same and consequently, direct
the Respondents herein to hold that the Arulmighu Karpaga Vinayagar, Arulmighu
Kasiviswanathar, Arulmighu Kasi Visalakshmi and Arulmighu Balamurugan
Temples situated in Kani Nilam Layout, Ward No. 28, Saravanampatty (formerly
Ward No.15, Saravanampatty Town Panchayat), Coimbatore Corporation would
also fall under public purpose, based on the petitioner representation dated
18.06.2018.
For Petitioner : Mr. G.Karthikeyan
For Respondents : Mrs. R.Anithan
State Government Counsel (For R1 & R5)
Mr. J.Sathya Narayana Prasad
(For R2 & R4)
ORDER
(Order of the court was made by N.KIRUBAKARAN.J.,)
The matter was heard through "Video Conference".
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W.P. No.19490 of 2018
2. The Petitioner has come before this Court challenging the order dated
23.07.2018 passed by the Fourth Respondent Coimbatore Corporation, by which
the allotment sought for by the Petitioner for Temples, which had already been
constructed as early as 1982, has been rejected.
3. The Petitioner submits that he is one of the land owners in 'Kaani Nilam'
layout, which is a duly approved layout formed in the year 1988. There are totally
38 housing plots and about 13,200 square feet have been retained for public
purposes in the said layout. Out of the total area of 13200 square feet of land, 2236
square feet had been used for constructing four Temples viz., Arulmigu Karpaga
Vinayagar Temple, Arulmigu Kasi Viswanathar Temple, Arulmigu Kasi Visalakshi
Temple and Arulmigu Balamurugan Temple, at the time of formation of the said
layout.
4. A Writ Petition has been filed in W.P. No. 29261 of 2014 seeking Writ of
Mandamus directing the Commissioner, Coimbatore City Corporation, Coimbatore
to remove the encroachment/ Temple structures found in the reserve site of DTCP
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W.P. No.19490 of 2018
approved layout in S.F. No. 355/1, Ward No.28, Saravanampatti, Coimbatore
Municipal Corporation. The said Writ Petition was disposed on 10.04.2015 with a
direction to take action within a period of four weeks. Subsequently,
one Mr. C.Palanisamy filed a Writ Petition in W.P. No. 30373 of 2014 challenging
the order dated 19.07.2014 passed by the Commissioner, Coimbatore City
Corporation, Coimbatore – 641 001 to restrain the official Respondents to interfere
with the said Writ Petitioner's peaceful possession, which was also disposed on
10.04.2015. Subsequently, the Petitioner filed a Writ Petition in W.P. No. 19535 of
2017 directing the Respondents therein to pass necessary orders on the Petitioner's
representation dated 15.07.2017. The said Writ Petition was dismissed with liberty
to the Petitioner to work out his remedy by order dated 08.08.2017. Subsequently,
the Petitioner approached the Respondents with a request to allot the said land in
that layout for the purpose of Temple. That representation has been rejected. The
said order is being challenged before this Court.
5. Heard Mr. G.Karthikeyan, Learned Counsel for the Petitioner,
Mrs. R.Anitha, Learned State Government Counsel appearing for the First and Fifth
Respondents and Mr. J.Sathya Narayana Prasad, Learned Counsel appearing for the
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W.P. No.19490 of 2018
Second to Fourth Respondents, and perused the materials placed on record, apart
from the pleadings of the parties.
6. It is evident from the records available, especially, status report filed by the
Second Respondent that 13,200 square feet has been earmarked for the public
purposes in that approved layout, namely, Kaani Nilam, vide LP/DTCP
No.462/1988 which is situated in Ward No. 28, North Zone of Coimbatore City
Municipal Corporation. The said layout was formed on 03.10.1988 and approval
was given in the year 1991 vide K.Dis. 598/88 dated 11.01.1991. Out of the total
area of 13,200 square feet, which is meant for public purposes, 2236 square feet of
land has been utilized for constructing the aforesaid four temples, which were in
existence even before the erstwhile Saravanampatti Town Panchayat got merged
with Coimbatore City Municipal Corporation in the year 2011 in delimitation
process.
7. It is stated by the Second Respondent, at the time of merger in the
Corporation during the year 2011 the park site did not even have fencing around it
and and there were four temples that had been already built on the park site.
Sufficient space for park and play-ground with children play materials have been
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W.P. No.19490 of 2018
provided. The Temples are located only in 2236 square feet, out of total area of
13,200 square feet. From the above, it is clear that even before the merger of the
Saravanampatti Town Panchayat with the Coimbatore City Municipal Corporation
during the year 2011, the Temples, which is in existence for more than 3 decades,
had been constructed when the said layout was formed. The Temples are being
worshipped by the area people and it occupies only 17% of the total area, which is
meant for public purposes.
8. In this regard, Mr. G.Karthikeyan, Learned Counsel for the Petitioner relied
upon the judgment in Villupuram Municipality -vs- M.Subramanian reported in
[(2002) 3 MLJ 375] , in which it has been held that the basic principles is to
provide the roads with minimum width and also the other amenities such as open
space to have the park for the use of the residents of the area and also to have
necessary open space to have the play ground for both elders as well as youngsters
and children for their healthy life and also to have the school, temple and other
necessities in the area. Paragraph No. 12 of that judgment is extracted :-
“ 12. In order to appreciate the contention of the learned
counsel for the respondent, one has to consider the purpose of the
Act and necessity for the individual to get the sanction for the lay
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W.P. No.19490 of 2018
out. As the Supreme Court pointed out in the case of PRATIBA CO-
OPERATIVE HOUSING SOCIETY LTD v. STATE OF
MAHASHTRA the tendency of the public is to raise unlawful
constructions and unauthorised encroachments which is increasing
in the entire country and such activities are required to be dealt
with by firm hands. Such unlawful constructions are against public
interest and hazardous to the safety of occupants and the residents
of multi storied buildings. Any regulation is being brought in only
to curb the illegal activities. Section 49 of the said Act
contemplates the filing of application for such sanction of lay out.
When the owner of the land, without considering the interest of the
purchasers of the land, including the basic necessity, started to
alienate the properties by laying out the plots and by providing
small lanes as roads, it became necessary for the authorities to
prescribe the norms to regulate the sanction of the lay out. It is
unnecessary to deal with every provision under the Act. But the
basic principle is to provide the roads with minimum width and
also the other amenities such as open space to have the park for the
use of the residents of the area and also to have necessary open
space to have the play ground for both elders as well as youngsters
and children to have a healthy life and also to have the school,
temple and other necessities in the area. In order to make it
compulsory the individual land owner had been directed to
approach the authorities in accordance with Section 49 of the
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W.P. No.19490 of 2018
Tamil Nadu Act 35 of 1972. When such application is being filed by
the individual, the authorities have to consider the viability of the
lay out and sanction the same, imposing the conditions which are
necessary in the public interest. When such permission is granted
for the lay out then Section 50 makes it clear that every permission
granted under Section 49 shall remain in force for a period of three
years from the date of such permission. The learned counsel for the
respondent mainly relied upon this provision in support of his
contention that after the expiry of three years period the sanction
would lapse and as such the authorities are not entitled to enforce
the conditions imposed therein. As already submitted, there is total
misconception on the part of the learned counsel for the appellant.
When once the lay out is sanctioned, it has to be kept as it is for
ever; especially in respect of the earmarked portions of the area for
public purpose. The conditions imposed for the sanction of the lay
out are the conditions coupled with the sanction of the lay out. In
that case, the lay out is being sanctioned only on the expectation
that the land owner will comply with the conditions imposed
thereunder. When the conditions are imposed for sanction of the
lay out the compliance of such condition is mandatory and is not
for the time being to satisfy the requirement of the sanction. When
that be so any condition imposed for the sanction of the lay out
must strictly be complied with. If the contention of the learned
counsel for the respondent is to be accepted then the conditions
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W.P. No.19490 of 2018
imposed for the sanction of the lay out can be patently violated
after the lapse of the validity period of sanction. It that be so, then
the conditions imposed for sanction of lay out would become
mockery as the land owner can make a belief of such compliance
for the time being alone without any relevance to the reality of the
fact that such conditions are imposed for the public interest and the
conditions have to be complied with some sincerity and the lay out
must be maintained for ever in accordance with the sanction. If this
is not the intention of the legislature, then there is no need for
imposing any condition knowing fully well that the conditions are
temporary one which can be enforced only during the subsistence
of the validity of sanction. When the conditions are imposed, there
is purpose behind this requirement and such conditions shall be
complied with and the reservations made under the conditions
should be kept intact for ever.”
The Learned Counsel also relied upon another judgment in Krishna Nagar
Residents Welfare Association -vs- The Director Town and Country Planning
reported in [2001(3) L.W. 828] in which his Lordship K.P.Sivasubramanian as he
then was relying upon the judgment in Pt. Chet Ram Vashist (Dead) by Lrs. -vs-
Municipal Corporation of Delhi reported in [(1995) 1 SCC 47) held that the lands,
which are meant for public purposes, can be utilized for any public purposes .
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W.P. No.19490 of 2018
Paragraph No.8 of the Judgment is extracted as follows:-
“8. 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
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W.P. No.19490 of 2018
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.”
From the above, it is held that the Temples, which also serves public purposes and
which are there in existence for more than three decades, cannot be disturbed.
9. Considering the fact and also the judgments relied upon by the Learned
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W.P. No.19490 of 2018
Counsel for the Petitioner, the Temples which have been in existence for more than
3 decades, and are worshipped by the people residing in the locality and hence, it
may not be appropriate to remove the said Temples, which may affect the
sentiments of the worshippers and area people. A perusal of the photographs
discloses the facts that sufficient place i.e. nearly 11,000 square feet is available
and children play materials are also made available, that apart there are many trees
available in the park site and the existence of the Temples do not cause any
disturbance to any person.
10. In view of the existence of the vast extent of the land in the said layout and
the existence of the Temples for more than 3 decades, the impugned order is
quashed and the Respondents are directed not to interfere with the peaceful
possession and enjoyment of the Temples or not to take any coercive action against
the Temples.
11. With the above directions, this Writ Petition is disposed of. Consequently,
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W.P. No.19490 of 2018
connected Miscellaneous Petition is closed. No costs.
[N.K.K.,J.] [T.V.T.S.,J.]
25.06.2021
Maya
Index: Yes/No
Internet: Yes/No
To
1. The District Collector
Coimbatore District
Coimbatore.
2. The Commissioner
Coimbatore City Corporation
Coimbatore-1.
3. The Assistant Commissioner
North Zone
Coimbatore City Corporation
Coimbatore.
4. The Executive Engineer (Project)
Coimbatore Corporation
Coimbatore – 641 001.
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W.P. No.19490 of 2018
N.KIRUBAKARAN, J.
and
T.V.THAMILSELVI , J.
Maya
5. The Member Secretary
Local Planning Authority
Coimbatore.
W.P. No. 19490 of 2018
Dated:25.06.2021
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