Madras High Court
Sivappa Reddy vs The District Collector on 2 January, 2025
Author: M.Sundar
Bench: M.Sundar
W.P.Nos.38817, 38820, 38823, 38825 and 38826 of 2024
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 02.01.2025
Coram
THE HONOURABLE MR.JUSTICE M.SUNDAR
and
THE HONOURABLE MR.JUSTICE K.RAJASEKAR
W.P.Nos.38817, 38820, 38823, 38825 and 38826 of 2024
& W.M.P.No.42024, 42030, 42034, 42035, 42037 of 2024
W.P.No.38817 of 2024
1. Sivappa Reddy
2. Venkatesh .. Petitioners
vs.
1. The District Collector
Office of the District Collectorate
Hosur, Krishnagiri
2. The Commissioner
Hosur Municipality
Hosur ... Respondents
Petition filed under Article 226 of the Constitution of India
praying for issuance of a writ of certiorarified mandamus calling for the
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W.P.Nos.38817, 38820, 38823, 38825 and 38826 of 2024
records relating to the impugned order issued by the 2nd respondent
having reference Na.Ka.No.13057/2024/F1 dated Nil.11.2024 and
received by the petitioners on 21.11.2024, quash the same and
nd
consequently direct the 2 respondent not to take any coercive action
against the petitioners pursuant to the said order.
For Petitioner : Mr.T.Vedi
(in all WPs)
For Respondents : Mr.T.K.Saravanan
(in all WPs) Government Advocate for R1
Mr.T.Balaji
Standing Counsel for R2
COMMON ORDER
(Order of the Court was made by M.SUNDAR, J.)
This common order will govern the captioned five main 'Writ
Petitions' ['WP' in singular and 'WPs' in plural for the sake of brevity]
and the captioned 'Writ Miscellaneous Petitions' ['WMP' in singular and
'WMPs' in plural for the sake of brevity].
2. 'Five notices signed by R2 on 09.11.2024 bearing reference
e/f/vz;:13057/2024/vg;1' [collectively 'impugned notices' for the sake
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W.P.Nos.38817, 38820, 38823, 38825 and 38826 of 2024
of convenience] have been called in question in the captioned WPs. This
is the third round of litigation in this Court. First round of litigation was
vide W.P.No.33975 of 2016 and WMP thereat, which came to be
disposed of by another Hon'ble Division Bench on 10.12.2018. The
second round is vide W.P.Nos.34362, 34264, 34268, 34279 and 34283 of
2024, which came to be disposed of by this Division Bench in and by a
common order dated 25.11.2024.
3. The impugned notices are identical and impugned notice in the
case file in W.P.No.38817 of 2024 is as follows:
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4. Learned counsel for writ petitioner submits that the matter
pertains to a 'layout in S.No..766pt, 768pt, 769pt, 774pt and 989pt in
Sennathur Village, Hosur Corporation' [hereinafter 'said land' for the
sake of convenience]. The layout provides for park and common use and
the layout number is 75/83.
5. In the first round of litigation, the writ petitioners filed
W.P.No.33975 of 2016 assailing a notice dated 12.09.2016 bearing
reference Na.Ka.No.--/2016/F1 qua said land. This notice is not part of
case file but learned counsel for writ petitioners submits that it was a
similar notice but at that point of time, it was Hosur Municipality, 'the
Tamil Nadu Urban Local Bodies Act, 1998 (Tamil Nadu Act 9 of 1999)'
[hereinafter 'TNULB Act' for the sake of brevity] had not kicked in and
therefore, it was governed by the Tamil Nadu District Municipalities Act,
1920 (Tamil Nadu Act 5 of 1920). In and by order dated 10.12.2018,
this Court directed R2 (then Commissioner of Hosur Municipality) to
pass final orders uninfluenced by any of the observations and based on
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the factual and legal pleas. Thereafter, the Commissioner of Hosur
Municipality issued notices dated 28.08.2024 which was assailed in
W.P.Nos.34262, 34264, 34268, 34279 and 34283 of 2024. To be noted,
this is the second round of litigation. The second round of litigation
came to be disposed of by this Division Bench by a common order dated
25.11.2024, which reads as follows:
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 25.11.2024
Coram
THE HONOURABLE MR.JUSTICE M.SUNDAR
and
THE HONOURABLE MR.JUSTICE K.RAJASEKAR
W.P.Nos.34262, 34264, 34268, 34279 and 34283 of 2024
&
W.M.P.Nos.37109, 37114, 37116, 37139 and 37144 of 2024
in W.P.Nos.34262, 34264, 34268, 34279 and 34283 of 2024
1.Kanthamma
W/o.Nagaraju
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2. G.Nagaraju
S/o.Late.Govindappa ... Petitioners
vs
The Commissioner
Hosur Municipality
Hosur ..
Respondent
Petition filed under Article 226 of the Constitution of India praying
for issuance of a writ of certiorarified mandamus calling for the records of
the respondent relating to the impugned proceeding having reference
Na.Ka.No.6865/F1/202 dated 28.08.2024, quash the same and
consequently direct the respondent not to take any coercive action
pursuant to the said proceeding.
For Petitioners : Mr.R.Bharath Kumar
(in all WPs)
For Respondent : Ms.Radhika
for Mr.T.Balaji
Standing counsel
for Hosur Corporation
COMMON ORDER
(Order of the Court was made by M.SUNDAR, J.)
Captioned five 'Writ Petitions' ['WPs' for the sake of brevity] assail
'notice dated 28.08.2024 bearing reference e/f/vz;6865vg;1202'
issued under Section 128(1)(b) of 'the Tamil Nadu Urban Local Bodies
Act, 1998 (Tamil Nadu Act 9 of 1999)' [hereinafter 'impugned notice and
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'said Act' for the sake of brevity].
2. Learned counsel submits that the writ petitioners have not been
show-caused or in other words they have not been given opportunity to
respond. Learned counsel submits that there was an earlier round of writ
petition being W.P.No.33975 of 2016 where there is a direction to give
opportunity to the writ petitioners.
3. Issue notice to respondent.
4. Ms.Radhika, learned counsel representing Mr.T.Balaji, learned
Standing counsel, accepts notice for the respondent.
5. Ms.Radhika, learned counsel, on instructions, submits that the
writ petitioner has sent a representation dated 23.10.2024 in response to
the impugned notices and orders have also since been passed. Learned
counsel further submits that orders have been signed by the respondent on
09.11.2024 and counsel for writ petitioner has been favoured with copies
of the orders so passed.
6. Section 128(1)(b) of said Act reads as follows:
'128. Power to remove encroachment from public
place. - (1) The Commissioner may, -
(a) ..........
(b) remove any immovable structure whether
permanent or of temporary nature encroaching the street or
public place or the [land belonging to municipality or vested
with the municipality] within the municipal limit, after issuing
a show cause notice for such removal, returnable within a
period of seven days form the date of receipt thereof:
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Provided that the Commissioner shall consider any
representation received within the time limit, before passing
final orders.'
7. We find that the procedure has been complied. Therefore, the
challenge to the impugned notices has lost steam.
8. The sequitur is, captioned writ petitions will stand dismissed
albeit preserving rights of the petitioners qua the orders signed on
09.11.2024, which have now been made by the Commissioner, leaving
open all contentions if the writ petitioners choose to challenge the order.
Consequently, captioned WMPs are also perish and the same are also
dismissed. There shall be no order as to costs.'
6. Post orders in the second round of litigation, impugned notices
have been made, though said land neither belongs to or is vested in the
Municipality, is the central theme of the point on which the challenge to
the impugned notices is predicated.
7. Issue notice to official respondents.
8. Mr.T.K.Saravanan, learned Government Advocate accepts notice
for R1 and Mr.T.Balaji, learned Standing counsel accepts notice for R2 in
all WPs.
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9. Owing to the limited scope of the captioned writ petitions, main
writ petitions were taken up in the Admission Board with the consent of
both sides.
10. We carefully considered the arguments of learned counsel for
writ petitioners. We find that TNULB Act which is a conditional
legislation kicked in on 13.04.2023. Therefore, the first round of
litigation and the order of this Court dated 10.12.2018 in W.P.No.33975
of 2016 was prior to coming into force of TNULB Act when District
Municipalities Act was holding the field. In and by Section 200(1)(b) of
TNULB Act, the District Municipalities Act stood repealed. Thereafter,
order of this Bench being order dated 25.11.2024 in W.P.Nos.34262,
34264, 34268, 34279 and 34283 of 2024 (second round of litigation)
came to be made.
11. This Court has already scanned and reproduced one of the
impugned orders and has written that the impugned notices are identical.
A careful perusal of the impugned notices brings to light that there is
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complete adherence to Section 128(1)(b) of TNULB Act together with
the proviso thereat of TNULB Act as regards procedure is concerned.
Besides this, it is also in accordance with orders of this Bench dated
25.11.2024 alluded to supra.
12. It is argued by learned counsel for writ petitioner that Section
128 will apply only when the land vests in or belongs to local body and
therefore, the point that needs to be considered is whether the impugned
notices can be sustained in the absence of any deed showing that said
land has been vested with the Municipality or the Corporation i.e., vested
with the local body. In this regard, the lead case is Pt.Chet Ram Vashist
vs Municipal Corporation Of Delhi reported in 1995 (1) SCC 47 wherein
Hon'ble Supreme Court held that the effect of reserving any street, open
space, park, etc., in a layout is that the owner ceases to be legal owner of
the land and that he can at best hold the land only for the benefit of the
society or the public in general. Thereafter, Hon'ble Mr.Justice
V.Ramasubramaniam, (sitting as a Hon'ble single Judge of this Court, as
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his Lordship then was), in Krishnasamy v. Member Secretary, Chennai
Metropolitan Development Authority, Gandhi Irwin Road, Egmore,
Chennai-81 reported in 2013 1 CTC 80 held that OSR land, which is
neither gifted nor handed over to the local body, may really not matter as
long as the point that it is OSR land is not disputed. It was held that such
land is in public domain. This principle in Krishnasamy case was
referred to with approval by Hon'ble Supreme court in the case of
Association of Vasanth Apartment owners Vs. V.Gopinath & Ors. vide
Civil Appeal No.1890-91 of 2010 (Supreme Court Neutral Citation: 2023
INSC 123). Relevant paragraphs in Vasanth Apartment case are
Paragraphs 43, 87 and 88, which read as follows:
' 43. Thereafter it is interesting that the learned Single Judge
holds as follows: -
“Para 13. Incidentally it must be pointed out that in Pt. Chet
Ram Vashist vs. Municipal Corporation of Delhi {1995 (1) SCC 47},
the Supreme Court held that the effect of reserving any site for open space,
park etc., in a layout is that the owner ceases to be a legal owner of the
land in dispute and that he would hold the said land for the benefit of the
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society or the public in general. It was further held in the said decision
that the entitlement of the Corporation or the local body to demand the
transfer of the land to them, is not made out from the provisions of any Act
or on any principle of law. The Court pointed out that the Corporation
may get a right as custodian of public interest to manage it in the interest
of the society in general. However, the right to manage as a local body,
was held by the Supreme Court in the said decision, to be not the same
thing as to claim transfer of the property to itself. The decision in Pt. Chet
Ram Vashist, was followed in Chairman, Indore Vikas Pradhikaran vs.
Pure Industrial Coke & Chemicals Ltd {MANU/SC/7706/2007 : 2007 (8)
SCC 705}. Again in Babulal Badriprasad Varma vs. Surat Municipal
Corporation {MANU/SC/7606/2008 : 2008 (12) SCC 401}, the Supreme
Court pointed out that a statute of town planning ex facie is not a statute
for acquisition of a property. The Court further observed that every step
taken by the State does not involve application of the Doctrine of Eminent
Domain.”
Para 16. At this juncture, a small prelude is necessary, to
understand how the liability to earmark open space for public and
recreational purposes, in a land developed into a layout and how the
liability to pay OSR charges, came into existence. Hence it is presented as
follows: -
(i) Section 9C, Chapter II-A of the Tamil Nadu Town and Country
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Planning (Amendment) Act, 1973 (Tamil Nadu Act No. 22 of 1974)
prescribed that the Madras Metropolitan Development Authority shall
carry out a survey of Madras Metropolitan area and prepare a Master
Plan as referred to in Section 17.
(ii) Accordingly, MMDA carried out necessary surveys and
studies and prepared the First Master Plan for the Chennai
Metropolitan Area in 1975. The Government approved the same in
G.O.Ms. No. 2395, Rural Development and Local Administration
dated 4.12.1976.
(iii) The First Master Plan covered an extent of approximately
1170 sq. kms. It included within the City of Chennai, a part of
Ambattur Taluk, Tambaram Taluk, Tiruvallur Taluk, Chengalpet
Taluk, Sriperumbudur Taluk, Ponneri Taluk and Poonamallee Taluk.
(iv) Under the said Plan, all lands in the Metropolitan Area
were categorised into 10 zones such as Primary Residential Use
Zone, Mixed Residential Use Zone, Commercial Use Zone, Light
Industrial Use Zone, General Industrial Use Zone, Special and
Hazardous Industrial Use Zone, Institutional Use Zone, Open Space
and Recreational Use Zone, Agricultural Use Zone and Non-Urban
Use Zone.
(v) Along with the First Master Plan, a set of rules known as
Development Control Rules were issued by the Government. These
rules dealt with (i) permission for development (ii) use zones and (iii)
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general provisions. (vi) Rule 19 of the Development Control Rules,
which comes under Part III, under the heading "General Provisions" deals
with layout and subdivision.
(vii) The liability to reserve a portion of the site in a layout as open
space, arose out of Rule 19 of the Development Control Rules, till these
rules were in operation. Para 17. Rule 19 of the Development Control
Rules contains a Table which prescribes the minimum width of the streets
and roads in different types of layouts. Just below the Table under Rule 19,
there is a Note. The said Note contains 3 prescriptions. The third
prescription in the said Note contains a Table indicating the extent of land
to be reserved for communal and recreational purposes in a layout or
subdivision for residential, commercial, industrial or combination of such
uses.
Para 21. It may be of interest to note that at the time when the First
Master Plan was conceived in 1975, the concept of "Group Development"
or "Flats", had not gained momentum in the City of Chennai. Therefore,
the Development Control Rules did not contain specific provisions to
regulate the same. But when developers started promoting flats, the issue
was taken up by the Madras Metropolitan Development Authority with the
Government, in a letter dated 22.3.1981. On the basis of the said letter of
the Member Secretary and the recommendations of the Technical
Committee of MMDA and the response of the public to the proposed
amendment to the Rules, the Government issued G.O.Ms. No. 940,
Housing and Urban Development, dated 8.10.1982, approving the Draft
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Rules for incorporation in the Development Control Rules with certain
modifications. They were issued by the Government in exercise of the
power conferred by Section 32 of the Tamil Nadu Town and Country
Planning Act, 1971.
Para 22. By the Amendment so made to the Development Control
Rules, sub-rules (b) & (c) were inserted under Rule 19. While sub-rule (b)
dealt with “Special Buildings”, sub-rule (c) dealt with “Set Back” for
residential and commercial. Under Clause (v) of sub-rule (c) of Rule 19,
the extent of land to be reserved for Community Recreational Purposes,
was indicated in a tabular column. It reads as follows:
Extent of layout Reservation (2)
(i) For the first Nil
3000 sq.meters
(ii) Between 3000 10% of the area excluding roads or in the alternative,
square meters and he/she shall pay the market value of the equivalent
10,000 square land excluding the first 3000 square meters as per the
meters valuation of the registration department. The space so
reserved shall be maintained as Community
Recreational Space and shall remain private.
(iii) Above 10,000 10% of the area excluding roads shall be reserved and
sq.meters this space shall be transferred to the Authority or to
the local body designated by it, free of cost, through a
deed. It is obligatory, to reserve the 10% space of the
site area and no charges can be accepted in lieu.
Para 23. But in so far as “Group Development/Flats” are
concerned, the open space to be reserved for Community
Recreational Purposes was indicated in a separate Table in the same
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Government Order G.O.Ms. No. 940, dated 08.10.1982, as follows:
Exent of layout (1) Reservation (2)
(i) For the first 3000 sq.meters Nil
(ii) Between 3000 square meters and 10% of the area excluding roads or
10,000 square meters in the alternative, he shall pay the
market value of the equivalent land
excluding the first 3000 square
meters as per the valuation of the
Registration Department. The space
so reserved shall be maintained as
Community 75 Recreational Space
and shall remain private.
(iii) Above 10,000 sq.meters 10% of the area excluding roads
shall be reserved and this space
shall be transferred to the Authority
or to the local body designated by it,
free of cost, through a deed. It is
obligatory to reserve the 10% of the
site area and no charges can be
accepted in lieu.
Para 24. Rule 19(a) & (b) was amended further by G.O.Ms. No. 35,
Housing and Urban Development, dated 9.1.1989. But the
Amendments introduced by the said Government Order covered only
layouts of the extent between 3,000 sq.meters and 10,000 sq.meters.
In other words, layouts of larger extents above 10,000 sq.meters,
were not covered by the said Amendment. Para 25. There appears to
be a subsequent amendment. Though the year of such amendment is
not clear, the Development Control Rules hosted in the Internet by
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the CMDA, as amended upto September 2004, contains two Tables,
one in respect of normal buildings under Rule 19(a) and another in
respect of “Special Buildings and Group Developments” under Rule
19(b). The Table under Rule 19(a) is as follows:
Exent of layout (1) Reservation (2)
For the first 3000 square Nil
meters
Between 3000 square meters 10 percent of the area excluding roads or
and 10,000 square meters in the alternative he shall pay the market
value of equivalent land excluding the
first 3000 square meters as per the
valuation of the registration department.
“No such area reserved shall measure
less than 100 square meters with a
minimum dimension of 10 meters”. The
space so reserved shall be transferred to
the Authority or to the Local body
designated by it, free of cost, through a
deed, and in turn the Authority or the
Local body may permit the residents
Association or Flat Owners' Association
for maintaining such reserved space as
park. In such cases public access for the
area as earmarked shall not be insisted
upon.
Above 10,000 square meters Space to the satisfaction of the authority
or transferred to the authority for
maintenance. It is obligatory to reserve
10 percent of the layout area.
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Para 26. The Table under Rule 19(b) in respect of Special Buildings,
is as follows:
Exent of layout (1) Reservation (2)
For the first 3000 square Nil
meters
Between 3000 square 10 percent of the area excluding
meters and 10,000 roads or in the alternative shall pay
square meters the market value of the equivalent
land excluding the first 3,000 square
meters as per the valuation of the
Registration Department only where
it is not possible to provide open
space due to physical constraints. No
such area reserved shall measure less
than 100 square meters with a
minimum dimension of 10 meters.
The space so reserved shall be
transferred to the Authority or to the
Local Body designated by it, free of
cost, through a deed, and in the turn
the Authority or the local body may
permit the Residents Association or
Flat Owners' Association for
maintaining such reserved space as
park. In such cases, public access for
the area as earmarked shall not be
insisted upon.
Above 10,000 square 10 percent of the area excluding
meters roads shall be reserved and this
space shall be transferred to the
authority or to the local body
designated by it, free of cost, through
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Exent of layout (1) Reservation (2)
a deed. It is obligatory to reserve the
10 percent space of this site area and
no charges can be accepted in lieu, in
case of new developments or
redevelopments.
Para 27. After a spurt in developmental activities, the CMDA felt a
need for a Second Master Plan for the Chennai Metropolitan Area.
Therefore, a Draft Second Master Plan 2011 was prepared and
submitted to the Government and the Government gave its consent to
it under G.O.Ms. No. 59, Housing and Urban Development
Department, dated 30.6.1995. After public consultation, it was
submitted to the Government in December 1995 for approval. But
approval could not be granted on account of an interim prohibitory
order granted by this Court in a Writ Petition. Though the Writ
Petition W.P. No. 14819 of 1995 was eventually dismissed on
10.7.2001, the Government returned the Draft Second Master Plan to
the CMDA for suitable modifications. This was under G.O.Ms. No.
408, dated 5.10.2001. Para 28. Thereafter, a revised Draft Second
Master Plan with the year 2026 as the horizon year, was prepared
and submitted to the Government in December 2005. The
Government again returned it under G.O.Ms. No. 331, H & UD
Department, dated 5.12.2006, with a direction to incorporate certain
developments in the field and to submit a fresh proposal for consent. This
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was done in February 2007 and the Government gave its consent on
30.3.2007. Para 29. Thereafter, copies of the Draft Second Master Plan
were made available to the public and also hosted in the official website of
the First Respondent. Subsequently public consultations were conducted in
April and July 2007 and a twoday workshop was also held in August 2007.
Thereafter, the draft was finalised and submitted to the Government.
Finally, the Second Master Plan for Chennai Metropolitan Area was
approved by the Government of Tamil Nadu in G.O.Ms. No. 190, Housing
and Urban Development, dated 2.9.2008 and it was notified in the Gazette
on the same day. As part of the Second Master Plan, a set of Regulations
known as “Development Regulations” were issued and they came into
force on 2.9.2008. Para 30. Regulation 26 of the Development Regulations
2008, contains stipulations regarding “Special Buildings”. A Special
Building is defined in Regulation 2(40) to mean (i) a residential or
commercial building with more than two floors, or (ii) a residential
building with more than 6 dwelling units or (iii) a commercial building
exceeding a floor area of 300 sq.meters.”
'87. In the said case, the Municipal Corporation of Delhi
passed a Resolution that, building activity in certain areas, be
allowed, subject to the condition that the open spaces for parks and
schools was to be transferred to the Corporation. This led to a civil
suit by the appellant, challenging the Resolution. This Court found
that Section 313 of the Delhi Municipal Corporation Act, 1957, did
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not empower the Corporation to claim any property in the manner
done. It was further 135 found that the Resolution was contrary to
the language used in Section 313 and violated a civil right, which
vests in every owner, to hold his land and transfer it in accordance
with law. The finding of the High Court that condition was only one
involving transfer of the right of management, was not accepted. In
fact, this Court also held, inter alia, as follows:
“5. The power directing transfer of the land has been
exercised under Section 313 of the Act. This section
falls in Chapter XV which deals with streets. The
public streets are dealt from Section 298 to Section
311 whereas private streets are dealt from Section
312 to Section 330. Section 312 obliges an owner of
any land utilising, selling, leasing out or otherwise
disposing of the land for the construction of building
to layout and make a street or streets giving access to
the plots into which the land may be divided and
connect it with an existing or public street. Section
313 requires such owner to submit a layout plan
before utilising the land for any of the purposes
mentioned in Section 312 and send it to the
Commissioner with a layout plan showing the
particulars mentioned in clauses (a) to(e). The
reservation or allotment of any site in the layout plan
for any open space, park or school is to be provided
by clause (b) of Section 313. Section 316 entitles the
Commissioner to declare a private street to be a
public street on the request of owners. Section 317
prohibits a person from constructing or projecting
any structure which will encroach upon, overhang or
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project into a private street. In fact the entire cluster
of sections from 312 to 330 of which Section 313 is a
part, deals with private streets only. There is no
provision in this chapter or any other provision in
the Act which provides that any space reserved for
any open space or park shall vest in the Corporation.
Even a private street can be declared to be a public
on the request of owners of the building and then
only it vests in the Corporation. In absence of any
provision, therefore, in the Act the open space left for
school or park in a private colony cannot vest in the
Corporation. That is why in England whenever a
private colony is developed or a private person
leaves an open space or park to be used for public
purpose he is required to issue what is termed as
‘Blight Notice’ to the local body to get the land
transferred in its favour on payment of
compensation. Section 313 which empowers the
Commissioner to sanction a layout plan, does not
contemplate vesting of the land earmarked for a
public purpose to vest in the Corporation or to be
transferred to it. The requirement in law of requiring
an owner to reserve any site for any street, open
space, park, recreation ground, school, market or
any other public purposes is not the same as to claim
that the open space or park so earmarked shall vest
in the Corporation or stand transferred to it. Even a
plain reading of sub-section (5) indicates that the
land which is subject-matter of a layout plan cannot
be dealt with by the owner except in conformity with
the order of the Standing Committee. In other words
the section imposes a bar on exercise of power by the
owner in respect of land covered by the layout plan.
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W.P.Nos.38817, 38820, 38823, 38825 and 38826 of 2024
But it does not create any right or interest of the
Corporation in the land so specified. The resolution
of the Standing Committee, therefore, that the area
specified in the layout plan for the park and school
shall vest in the Corporation free of cost, was not in
accordance with law.” (Emphasis supplied).'
'88. Still further, the Court held as follows:
“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. …”
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W.P.Nos.38817, 38820, 38823, 38825 and 38826 of 2024
(Emphasis supplied)'
13. We remind ourselves of oft-quoted Padma Sundara Rao case
[Padma Sundara Rao Vs. State of Tamil Nadu reported in (2002) 3
SCC 533: 2002 SCC OnLine SC 334] as regards precedents. Relevant
paragraph is paragraph 9 and the same reads as follows:
''9.Courts should not place reliance on decisions without
discussing as to how the factual situation fits in with the fact
situation of the decision on which reliance is placed. There is
always peril in treating the words of a speech or judgment as
though they are words in a legislative enactment, and it is to be
remembered that judicial utterances are made in the setting of the
facts of a particular case, said Lord Morris in Herrington v.
British Railways Board [(1972) 2 WLR 537 : 1972 AC 877 (HL)
[Sub nom British Railways Board v. Herrington, (1972) 1 All ER
749 (HL)]] . Circumstantial flexibility, one additional or different
fact may make a world of difference between conclusions in two
cases.'
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W.P.Nos.38817, 38820, 38823, 38825 and 38826 of 2024
14. Applying Padma Sundara Rao case law of precedents, we
find that once land is set apart for public use in a layout, the owner
ceases to be legal owner and it is in public domain. In this view of the
matter, the argument of learned counsel that said land neither belongs to
the Corporation/Municipality nor has been vested in the Municipality
pales into insignificance. In other words, it does not cut ice with us. To
be noted, there is no disputation about OSR.
15. Another point that was made by learned counsel for writ
petitioner is that the extent of land has not been mentioned with
specificity. As there is a specific reference to layout, this argument does
not hold water.
16. Be that as it may, we record the statement of learned Standing
counsel for R2 that any other encroachment by any person be it the writ
petitioners or any other encroacher would also be dealt with in the same
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W.P.Nos.38817, 38820, 38823, 38825 and 38826 of 2024
manner i.e., in an even handed manner is recorded.
17. As both the points on which the campaign against the
impugned notices was predicated fail to cut ice, captioned main WPs fail
and the same are dismissed. Consequently, captioned WMPs thereat also
perish with the main WP and the same stand dismissed. There shall be no
order as to costs.
[M.S., J] [K.R.S., J]
Index: Yes/No 02.01.2025
Neutral Citation: Yes/No
Speaking order / Non-speaking order
gpa
To
1. The District Collector
Office of the District Collectorate
Hosur, Krishnagiri
2. The Commissioner
Hosur Municipality
Hosur
https://www.mhc.tn.gov.in/judis
W.P.Nos.38817, 38820, 38823, 38825 and 38826 of 2024
M.SUNDAR,J.,
and
K.RAJASEKAR, J.,
gpa
W.P.Nos.38817, 38820, 38823, 38825 and 38826 of 2024
02.01.2025
https://www.mhc.tn.gov.in/judis
