KIRUBAKARAN Vs. COMMISSIONER

JUDGEMENT

(1.) This writ appeal is preferred against the order made in W.P.No.12536 of 2008 dated 30.4.2010, dismissing the writ petition filed by the appellants, who have prayed for issuing writ of mandamus directing the respondent to remove the Board placed by the respondent on 20.2.2008 in Housing Plot in S.Nos.177/1, 178/1, 185 in Kothari Layout, Sowripalayam Village, Singanallur Municipality, now within the limits of Coimbatore Corporation, forthwith and desist from attempting to encroach into the properties belonging to the appellants.

(2.) The case of the appellants before the learned single Judge was that an extent of 5.37 acres in Kothari Layout was developed as housing plots in S.Nos.177/1, 178/1, 185 of Sowripalayam Village, Singanallur Municipality, now within the limits of Coimbatore Corporation, by one E.V.K.Ranga Rao, son of R.Ethirajulu and the said layout was approved by the Deputy Director, Town and Country Planning, Coimbatore, in his proceedings dated 5.7.1976. The layout disclosed 34 housing plots, roads and an area of 53.80 cents, reserved for public purpose. According to the appellants, the predecessors-in-title were in possession of the area earmarked for public purpose (an extent of 53.80 cents) till 1980 and the said property was not gifted/handed over to Singanallur Municipality. Municipality also did not take any steps to take possession of the said land within one year from the grant of sanction/layout approval. On formation of Corporation of Coimbatore, the said area comes under the Corporation limits. According to the appellants the said property was sold for the purpose of construction of hospital to G.Kirubakaran and Dr.Murugan by sale deed dated 3.4.1980, disclosing the fact that the property was earmarked for public purpose. The said property was further divided among the family members of G.Kirubakaran and Dr.Murugan. The said Kirubakaran, Ashokan and Sunanthini were in possession of 30 cents, 8.5 cents and 8.5 cents respectively, and the remaining 7 cents were in possession of Dr.Murugan. The wife of the said G.Kirubakaran is also a Doctor. Similarly, Dr.Murugan and his wife are also practising as Doctors in U.K. According to the appellants, after retirement, the said Doctors would return to Coimbatore and commence medical practice by constructing a hospital in the area purchased by them in the year 1980. On 20.2.2008 the Officers of the Corporation of Coimbatore put up a Board in the property/site stating that the property is belonging to Corporation and it was not used for public purpose. According to the appellants no notice or personal hearing was given by the Corporation before putting up the Board. The property was fenced and tax was also paid by the appellants. There is no dispute about the ownership of 53.80 cents of land and after 20.2.2008, a representation was addressed by the appellants to the respondent to remove the Board. Though the said communication was acknowledged, no action having been taken, the appellants filed the writ petition with the above said prayer.

(3.) The said writ petition was resisted by the respondent by filing counter affidavit stating that the property having been earmarked for public purpose at the time of layout approval, the predecessor-in-title were ceased to be the legal owner of the land and the land was intended for the benefit of the residents of the house plots and also the public in general. The layout approval having been granted with the condition that 53.80 cents be earmarked for public purpose, the owner of the land is not expected to transfer or sell the same to any third party. Insofar as the contention that the appellants are planning to construct a private hospital in the area, which is earmarked for public purpose, is illegal in the light of the judgment of the Supreme Court Bangalore Medical Trust v. B.S.Muddappa, 1991 AIR(SC) 1902 wherein the Supreme Court held that a Private Nursing Home is essentially a commercial venture and profit-oriented industry. Section 250(2) of the Coimbatore City Municipal Corporation Act, 1981 creates an obligation that owner shall reserve 10% layout area for common purpose, in addition to the area provided for laying streets. The entire area being 5 acres and 37 cents, as per Section 250(2), the land owner reserved an area of 53.80 cents for public purpose, which is a statutory duty cast upon the land owner, who has sought for layout approval. The board was erected in the place reserved for public purpose as per guidelines issued by the Division Bench of this Court in the Judgment Devi Nagar Residents Welfare Association, rep.by its President G.P.Godhanavalli, Coimbatore and another v. Subbathal and others,2007 3 MadLJ 990. The respondent being a party in the said judgment, implemented the guidelines issued and the appellants have admitted that the said land is not utilised for public purpose from the year 1976 i.e, for over 32 years. Even in the affidavit filed in support of the writ petition, intention of the appellants is only to construct private hospital, which cannot be a public purpose. It is further stated in the counter affidavit that by putting up board in the site cannot be treated as taking over possession and the meaning conveyed was to show that the property is to be used only for public purpose and the promoter having not put on use the land reserved for public purpose, the Corporation is entitled to make it as a public park or for public usage, and therefore there is no violation of any right of the appellants as their purchase itself is illegal.