Madras High Court
The Commissioner vs The Deputy Commissioner Of Police on 17 March, 2025
Author: S. M. Subramaniam
Bench: S. M. Subramaniam
WA No. 1937 of 2024
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 17-03-2025
CORAM
THE HONOURABLE MR JUSTICE S. M. SUBRAMANIAM
AND
THE HONOURABLE MR.JUSTICE K.RAJASEKAR
WA No. 1937 of 2024
and
CMP.No.2923 of 2024
1. The Commissioner
Greater Chennai Corporation, Ripon
Buildings, Chennai -600 003.
2.The Zonal Officer
Corporation of Chennai - Zone 04,
Chennai Greater Corporation,
Tondiarpet, Chennai - 600 021.
3.The Regional Deputy Commissioner
(north)
Corporation of Chennai, Basin Bridge
Road, Chennai - 600 021.
Appellant(s)
Vs
1. The Deputy Commissioner Of Police
Madhavaram Milk Depot, Sengundram
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WA No. 1937 of 2024
District, Chennai - 051.
2.Mrs. R. Jayalakshmi
W/o. Late Mr. M. Ramar,
No.276, E.H.Road,
Vysarpadi, Chennai - 039.
Respondent(s)
PRAYER
To set aside the order in WP.No.25431 of 2022 dated 25-01-2023 and pass such
further or other orders that this Court deem fit and necessary in the
circumstances of this Case and thus render justice
For Appellant(s): Mr.R.Ramanlaal AAG
asst by
Ms.P.T. Ramadevi
and Mr.A.S.Ragul Adhithya
For Respondent(s): Mr.M.Babumuthumeeran
Addl Public Prosecutor for R1
Mr.T.Sundar Rajan for R2
JUDGMENT
(Judgment of the Court was made by S.M.Subramaniam J.)
Under assail is the Writ order dated 25.01.2023 passed in W.P.No.25431
of 2022.
2. The Commissioner, Greater Chennai Corporation, is the appellant
before this Court. The 2nd respondent Mrs.R.Jayalakshmi, instituted the Writ
proceedings for issuance of Writ of Mandamus, forbearing the respondents from
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in any manner interfering with her peaceful possession and enjoyment of the
property measuring 8897 sq.ft situated in Plot. No.1 and 2 of Thendral Nagar,
7th street, Selavoyal, Chennai – 600 118, comprised in O.S.No.70/6, as per Patta
C.A.No.1521/1999 and C.A.No.305 of 2001 comprised in T.S.No.104/2 and
104/3 regularised by the respondents 1 and 2 therein vide Regularisation Permit
No.1400/2020 dated 22.07.2020 and 1417 of 2020 dated 24.07.2020.
3. The contention of the appellant/Corporation is that land reserved
for OSR (Park) has been sold illegally by the land promoter, by dividing it into
two portions. One portion was sold in the year 1997 in favour of the 2 nd
respondent. The Competent Authorities have not granted building plan
permission, on the ground that a portion of the land has been earmarked for park
area. When the 2nd respondent made an attempt to construct compound wall, the
Corporation Authorities obstructed and demolished the same, which provided a
cause for institution of a civil suit by the 2nd respondent in O.S.No.5157 of 2005
on the file of the XIII Assistant City Civil Court, Chennai, The suit is for bare
injunction to restrain the Chennai Corporation from interfering with the
peaceful possession of the 2nd respondent from the subject property. The relief
sought for in the Writ Petition is also akin to that of the relief sought for in the
civil suit. The suit was decreed in favour of the 2nd respondent. Appeal Suit filed
by official respondents, more specifically, the Corporation was dismissed by the
learned V Additional Judge, City Civil Court, Chennai in A.S.No.344 of 2007
dated 15.04.2009. Relying on the above judgment and decree of the Civil Court,
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the Writ Petition has been instituted, seeking relief to prevent interference with
the 2nd respondent's peaceful possession of the subject property.
4. Mr.Ramanlal, learned Additional Advocate General appearing on
behalf of the appellants, would mainly contend that the approved layout of the
year 1971, as approved by the Assistant Director, District Town and Country
Planning, Chengalpet District, reveals that the subject property was earmarked
as OSR (Park area) and therefore, the Civil Suit itself is not maintainable. The
approved layout has been issued pursuant to the request made by the Chennai
Corporation, and the Assistant Director, District Town and Country Planning
communicated the copy of the approved layout of the year 1971 to the Zonal
Officer, Zone -04, Greater Chennai Corporation in proceedings, dated
30.05.2023. The said letter reveals that the original layout No.41/71 was
approved by the Assistant Director, District Town and Country Planning
Chengalpet District in Proceedings. Ma.Pa./Corpn/D.T.C.P.No.41/71.
5. Pertinently, the husband of the 2nd respondent, late Mr.M.Ramar,
filed W.P.No.29078 of 2011, challenging the rejection order, declining to grant
building plan permission. The Writ petition was allowed, and the
Commissioner, Chennai Corporation filed W.A.No.412 of 2013. The Division
Bench of this Court considered the issues and disposed of the Writ Appeal,
directing the authorities to consider the application submitted by the respondent
for grant of planning permission on merits and in accordance with law, after
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providing him an opportunity of personal hearing. Thereafter, the request of the
2nd respondent was considered, and the authorities rejected the building plan
permission application, on the ground that a portion of the property is
earmarked as OSR land for developing a park. In view of the fact that, as per the
approved layout, the plot purchased by the 2nd respondent is OSR land,
earmarked for public park, the sale itself became invalid and the building plan
permission cannot be granted in favour of the 2nd respondent. The Writ Court
has not considered these aspects and granted relief based on the Civil Court
judgment and decree, which is untenable.
7. Learned counsel appearing on behalf of the 2nd respondent would
oppose by stating that the Civil Court has discussed about the layout approval.
When there is a finding in the judgment of the Civil Court that the layout
approval of the year 1971 was modified, the purchase of the plot by the 2nd
respondent in the year 1997 is valid. Thus, the relief granted by the Writ Court
is in consonance with law.
8. It is contended that the 2nd respondent and her husband validly
purchased the plot in the year 1997 and made an attempt to construct a
compound wall. The Corporation authorities obstructed the same, which
resulted in institution of the civil suit. The civil suit seeking bare injunction was
decreed in favour of the 2nd respondent. The appeal suit filed by the Corporation
was dismissed. The Civil Court has elaborately considered the identification of
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the plot purchased by the 2nd respondent, which was considered by the Writ
Court. Thus, the present Writ Appeal is to be rejected.
9. This Court has considered the rival submissions made on behalf of
parties to the lis.
10. In order to decide the issues on hand, it is relevant to consider the
layout approval granted by the Assistant Director, District Town and Country
Planning, Chengalpet District on 30.03.1971 in Proceedings k/g/kh/e-J/e/,
vz;/41-71. This approval shows that a portion of the land was earmarked for
park (OSR land) and another portion on the eastern side for shop construction.
The OSR land was divided into residential plots, and one plot has been sold in
favour of the 2nd respondent and her husband, Late Mr.Raman in the year 1997
by the layout promoter. Regarding the approved layout by the competent
authorities under the provisions of the Town and Country Planning Act, Section
101 of the Town and Country Planning Act, 1971 provides bar of jurisdiction of
Court and the Section reads as under, “Any decision or order of the Tribunal or
the Government or the planning authority or other authority or of any officer
under this Act shall, subject to any appeal or revision or review provided under
this Act, be final and shall not be liable to be questioned in any Court of law
[and no injunction shall be granted by any court against the notices served to
any person by the planning authority under section 56 or under section 57 of
this Act].”
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11. In the present case, the planning authority granted approved layout
No.41/1971 in the year 1971. The said layout proceedings remains
unchallenged. The 2nd respondent has admittedly instituted a suit for bare
injunction. The approved layout of the year 1971 has not been marked as a
document in the civil suit. In this background, the Civil Court ought not to have
entertained the civil suit for bare injunction, since it is expressly barred under
Section 101 of the Tamil Nadu Town and Country planning Act. Any layout
approved by the competent authorities under the Town and Country Planning
Act is a proceedings under the Act and the said proceedings having remained
unchallenged, the conversion of the OSR land as residential plot at the instance
of the land developer, cannot be a cause for institution of an injunction suit.
Thus, there is an express bar applies in the present case and consequently the
suit is not maintainable under Section 9 of the CPC before the Civil Court.
12. As far as the approved layouts are concerned, OSR lands ought to
be maintained for the purpose for which they have been earmarked in the
approved layout. Even if such OSR lands are not gifted by formally registering
a deed in favour of the local authority, it is to be maintained as per the layout
plan approval and non-registration of a document in favour of the local
authority would not change the character of the OSR land, which is earmarked
as per the approved layout.
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13. The Hon'ble Supreme Court of India, in the case of Association of
Vasanth Apartments' Owners Vs. Gopinath and Others1, settled the principles,
more specifically, with reference to the provisions of the Tamil Nadu Town and
Country Planning Act, 1971. The relevant observations of the Apex Court stands
extracted here under,
“22. It is further contended that the
Rules/Regulations, being part of the master plan, are
statutory and being framed under the Statute, they
operate as law under Article 300A. Reliance is placed
on Pune Municipal Corporation and another v.
Promoters and Builders Association and another
[(2004) 10 SCC 796]. Reliance placed by appellants
on Pt. Chet Ram Vashist (Dead) by Lrs. v. Municipal
Corporation of Delhi [(1995) 1 SCC 47], is alleged to
be misplaced. In the said case, there is no provision in
the Delhi Municipal Corporation Act, 1957, under
which, the Corporation could pass a Resolution to ask
the appellant therein to transfer property free of cost.
It is further contended that the Court may bear in
mind that the Act replaced the Tamil Nadu Town and
Country Planning Act, 1920, which was based on the
British Town and Country Planning and Housing Act,
1909. From the Statements of Objects and Reasons, it
is contended that the Act was based on the Model
Town and Country Planning Bill, which was prepared
by the Ministry of Health and Housing of the
Government of India after a comprehensive study of
various Town Planning Enactments in the western
countries. The regional concept in the Maharashtra
Town and Country Planning Act, 1966 also made its
presence felt. The Act is designed to serve legitimate
1 2023 4 MLJ 353 (SC)
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state interest of planned development down to the
regional limit. Crowded urban areas, create adverse
living conditions. The reservation of open space for
parks and playgrounds is universally recognised. The
decision of this Court in Bangalore Medical Trust v.
B.S. Muddappa and others [(1991) 4 SCC 54], is
relied upon. It is contended that the Act requires only
the simple laying of Rules and Regulations under
Section 123 of the Act. The laying of the Rules, which
is not mandatory, if not followed, will not affect the
validity of the Rules/Regulations. The terms of Section
123(2) are relied upon to contend that the Rules will
come into effect even before they are placed before the
Legislative Assembly and any modification made by
the Assembly, will apply only from the date it is
carried out. Reliance is placed on Atlas Cycle
Industries Ltd. and others v. State of Haryana [(1979)
2 SCC 196]. It is further contended that acquisition
under Chapter IV of the Act is not required in the
facts. The area is not reserved in the master plan nor
was any Notice published under Section 26 or 27.
Acceptance of appellant’s contention would involve
the need to compulsorily acquire all the reserved
lands including areas such as setback areas, open
spaces and other reserved area. Such interpretation
would also render the provisions of Chapter VI, in
particular Section 55, otiose. Chapter IV apply to
areas reserved and notified in the master plan itself or
to an area in excess of 10 per cent for proposed
developed area of 3000 and above square meters or
where area reserved is sought to be utilised for
purpose not being communal or recreational, or
areas, for which, there are other exceptions in the
impugned Rules/Regulations. Section 20(1)(d)
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stipulates that a detailed development plan may
propose or provide for acquisition by purchase,
exchange or otherwise, of any land. The words ‘or
otherwise’ include a transfer of 10 per cent of the land
by way of a gift. It is further contended that there is no
constitutional obligation to pay compensation. The
Act contemplates divestment of property without
compensation as is evident from Sections 31 and 55
read with Sections 17 and 20. It is a settled position of
law that Article 300A does not involve or compel
payment of compensation. Support is drawn from
Judgment of this Court in K.T. Plantation Private
Limited and another. v. State of Karnataka2
“183. Payment of compensation amount is a
constitutional requirement under Article 30(1-
A) and under the second proviso to Article 31-
A(1), unlike Article 300-A. After the
Fortyfourth Amendment Act, 1978, the
constitutional obligation to pay compensation
to a person who is deprived of his property
primarily depends upon the terms of the statute
and the legislative policy. Article 300-A,
however, does not prohibit the payment of just
compensation when a person is deprived of his
property, but the question is whether a person
is entitled to get compensation, as a matter of
right, in the absence of any stipulation in the
statute, depriving him of his property.
xxx xxx xxx
192. At this stage, we may clarify that there is a
difference between “no” compensation and
“nil” compensation. A law seeking to acquire
2 (2011) 7 MLJ 1185
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private property for public purpose cannot say
that “no compensation shall be paid”.
However, there could be a law awarding “nil”
compensation in cases where the State
undertakes to discharge the liabilities charged
on the property under acquisition and onus is
on the Government to establish validity of such
law. In the latter case, the Court in exercise of
judicial review will test such a law keeping in
mind the above parameters.
xxx xxx xxx
205. Plea of unreasonableness, arbitrariness,
proportionality, etc. always raises an element
of subjectivity on which a court cannot strike
down a statute or a statutory provision,
especially when the right to property is no
more a fundamental right. Otherwise the court
will be substituting its wisdom to that of the
legislature, which is impermissible in our
constitutional democracy.” ...
74. We may however notice the following: “This does
not mean, however, that an owner whose property is
unencumbered has completely unlimited rights. To
describe someone as an absolute owner of property is
to say two things; it is to assert that his title to the
property is indisputable, and that he has all the rights
of ownership allowed by the legal system in question.
We have seen that the rights of ownership may be
limited by the adverse dominant rights of an
encumbrancer or by the rights of the possessor (who
is in fact one very special type of an encumbrancer).
They may also be limited by special provisions of law
such as Town & Country planning law, which
regulates for social purposes the use which an owner
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may make office land. But in addition to being
restricted by such specific provisions of public law,
and owner’s rights are restricted by a whole variety of
provisions of the ordinary law, according to which
various harmful and dangerous types of conduct
qualify as criminal or tortious; the fact that I am the
owner of a knife will not entitle me to use it to kill
Smith. We may say that an owner is free to use and
dispose of his property as he pleases, except in so far
as he does not infringe his duties to specific
encumbrancers, his duties under special regulations
concerning the use of property (f) and his general
duties under the general law of the land (f).”
(Emphasis supplied) ...
106. The Court, in Virender Gaur (supra), further
found power to the Municipality under Section 66 to
transfer the land vested in it. The Court went on to
hold, inter alia, as follows:
“11. It is seen that the open lands, vested in the
Municipality, were meant for the public amenity to the
residents of the locality to maintain ecology,
sanitation, recreation, playground and ventilation
purposes. The buildings directed to be constructed
necessarily affect the health and the environment
adversely, sanitation and other effects on the residents
in the locality. Therefore, the order passed by the
Government and the action taken pursuant thereto by
the Municipality would clearly defeat the purpose of
the scheme. Shri D.V. Sehgal, learned Senior Counsel,
again contended that two decades have passed by and
that, therefore, the Municipality is entitled to use the
land for any purpose. We are unable to accept the
self-destructive argument to put a premium on
inaction. The land having been taken from the citizens
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for a public purpose, the Municipality is required to
use the land for the protection or preservation of
hygienic conditions of the local residents in particular
and the people in general and not for any other
purpose. Equally acceptance of the argument of Shri
V.C. Mahajan encourages preemptive action and
conduct, deliberately chartered out to frustrate the
proceedings and to make the result fait accompli. We
are unable to accept the argument of fait accompli on
the touchstone of prospective operation of our order.”
14. As per the principles laid down, a failure on the part of the land
developer to execute a gift deed in favour of the local authority cannot be a
ground to seek exoneration, for the purpose of the conversion of the OSR land
for any other purpose. Therefore, converting the OSR land as residential plot by
the land developer is illegal and in violation of the layout approved proceedings
as well as the provisions of the Tamil Nadu Town and Country Planning Act.
15. As far as the Civil Court judgment and decree in the suit for bare
injunction is concerned, the Civil Court has proceeded merely based on the facts
established, on the ground that the 2nd respondent purchased a residential plot
from the developer. Though Exhibit B1 document, the lay out of the house plot
filed by the defendant side, the Civil Court has no jurisdiction to adjudicate the
OSR land, which was already approved by the competent authority under the
Town and Country Planning Act. When there is an express bar under Section
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101 of the Act for entertaining a suit for injunction, the relief granted by the
Civil Court on the ground that the 2nd respondent purchased the residential plot
is of no avail. Even before this Court, there is a controversy between the parties
that the layout approval of the year 1971 had been produced before the Civil
Court.
16. Learned Additional Advocate General would submit that the said
plan has not been produced. May that as it may, once the layout approval
indicates that the portion of the property purchased by the 2nd respondent is a
OSR land, reserved for park, the Civil Court lost its jurisdiction under Section
101 of the Tamil Nadu Town and Country Planning Act. Therefore, any findings
on merits deserves no consideration on the hands of this Court. When the Civil
Court has no jurisdiction under Section 101 of the Town and Country Planning
Act, adjudication on merits in an injunction suit is not entertainable and the
parties to the suit cannot rely on any findings. The Civil Court has not
adjudicated about the validity of the layout approval of OSR land earmarked for
developing park under the approved layout. Therefore, the said judgment and
decree is to be declared as null and void, as far as the approved layout plan is
concerned.
17. This Court is of the considered view that the layout approval was
nd
granted in the year 1971, and the portion of the land purchased by the 2
respondent is falling under the OSR land, earmarked for park area. If at all the
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facts relating to OSR land has been suppressed at the time of purchase, it is for
the 2nd respondent to sue her vendor for appropriate remedy. Contrarily, they
cannot develop a litigation to change the character of a OSR land, nor such park
area can be converted as a residential plot in violation of the approved layout
plan approved by the competent authority under the Act.
18. In view of the facts and circumstances, this Court is inclined to
invoke Article 227 of Constitution of India and declare the judgment and decree
passed by the XIII Additional Judge, City Civil Court in O.S.No.5157 of 2005,
dated 22.12.2006, as confirmed by the V Additional Judge, City Civil Court,
Chennai in A.S.No.344 of 2007, dated 15.04.2009 as null and void and non-est
in the eyes of law. However, the 2nd respondent is at liberty to sue their vendor
for suppression of facts or for any other relief, for which, the 2nd respondent is
legally entitled.
19. As far as the Writ order challenged in the present Writ Appeal is
concerned, the learned Single Judge has proceeded based on the findings of the
Civil Court. When the Civil Court has no jurisdiction, in view of an express bar
under Section 101 of the Town and Country Planning Act, the said order is also
liable to be set aside. Consequently, the Writ Order dated 25.01.2023 passed in
W.P.No.25431 of 2022 is set aside.
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20. Accordingly, the Writ Appeal is allowed. No costs. Consequently,
the connected Miscellaneous Petitions, if any, are closed.
(S.M.SUBRAMANIAM J.)(K.RAJASEKAR J.)
17-03-2025
GD
Index:Yes/No
Speaking/Non-speaking order
Internet:Yes
Neutral Citation:Yes/No
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To
1.The Deputy Commissioner Of Police
Madhavaram Milk Depot, Sengundram
District, Chennai - 051.
2.Mrs. R. Jayalakshmi
W/o. Late Mr. M. Ramar, No.276,
E.H.Road, Vysarpadi, Chennai - 039.
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S.M.SUBRAMANIAM
J.
AND
K.RAJASEKAR J.
gd
17-03-2025
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