R SHENRAJ Vs. CHENNAI METROPOLITAN DEVELOPMENT AUTHORITY

JUDGEMENT

(1.) THE case of the Petitioner is that the Petitioner is the Chitra Flats and Apartments Owners Association, bearing Registration No. 205/2002; that there are around 350 flats in the Avenue and around 1500 inmates are living there, which is exclusive of the expected occupants in the unsold flats and some of the flats were purchased as early as 1999; that at the time of occupation, the members of the Petitioner Association found that the particular area adjacent to the Nungampakkam Railway Station was kept vacant, which resulted in anti social elements trespassing into the said land and causing public nuisance; that the Petitioner association decided to prevent such trespass and nuisance and made enquiries for ascertaining the status of the land; that thereafter they came to known that the said land was earmarked as Open Space Reservation Land (OSR), which has been gifted to the 2nd Respondent by virtue of the registered gift deed dated 26. 6. 2000 registered as Doc. No. 2206/2000 with the Sub Registrar, Kodambakkam; that the gift was made as required under Clause 19 (B)iv of the Development Control Rules of Chennai Metropolitan Development Authority; that the Petitioner made several oral and written representations to the Respondents, requesting for proper utilisation and maintenance of the said OSR Land, but they failed to response and hence, they mobilised funds among themselves and developed a small park and garden for protecting the residents from the ill effects of urbanisation; that the said park and garden have been under the exclusive maintenance of the flat owners for the past several years; that while things are as such, the 2nd Respondent attempted to obstruct the residents from using the said OSR land; that on 18. 4. 2002 some of the officials of the 2nd Respondent started putting up obstruction with an ulterior motive of converting the said recreational area for the betterment of some influential third parties; that the Petitioner has filed WP. No. 14264/2002 to issue a Writ of Mandamus to direct the 2nd Respondent therein to pass orders on the representation of the Petitioner dated 10. 8. 2001 to earmark the said land for reserved area and consequently to maintain the same; that in WPMP. NO. 19229/2002 in WP. No. 14264/2002, interim injunction was granted as sought by the Petitioner by order dated 25. 4. 2002, which was made absolute on 29. 8. 2003 and the said Writ Petition was ultimately disposed of on 18. 9. 206, directing the Respondent Corporation to decide as to whether the open space should be given for the purpose of usage by the flat owners in question; that thereafter, the Respondent Corporation has passed the impugned order dated 14. 12. 2006, directing the Petitioner association to remove all the play equipment and hand over possession of the said OSR Land to the Corporation and hence, this Writ Petition has been filed.

(2.) THE case of the Respondents is that admittedly the land in question was donated to the Respondent Corporation and hence, they have every right over the said land and possession was not handed over by the Petitioner and hence, they could not develop the park and garden and for that purpose, the Respondents rightly passed the impugned order, directing the Petitioner Association to remove the obstructions and hand over possession of the same.

(3.) THE learned counsel for the Petitioner has submitted that the impugned order passed by the Respondent is arbitrary, besides that it is a non speaking order; that the Respondents did not conduct proper enquiry by giving opportunity to the Petitioner Association and the Petitioner is not causing any obstruction as alleged by the Respondent Corporation; that GO. Ms. No. 165 dated 10. 9. 1997 issued by the Housing and Urban Development Department permitted the residents association to maintain reserved areas as parks/gardens and hence, the Petitioner by spending huge amount developed the park and garden and hence, it is not proper on the part of the Respondent Corporation to direct the Petitioner to remove the playing equipments and hand over possession of the land in dispute and hence, the Petitioner is entitled to maintain the park and garden, in which the Respondent Corporation has no right at all and prayed for quashing of the impugned order.