MADRAS DIVISIONAL RAILWAY STAFF CO OP BUILDING SOCIETY LTD BY ITS PRESIDENT Vs. CORPORATION OF MADRAS

JUDGEMENT

(1.) W.P. No. 16312/98; Petitioner-Society had obtained an approved lay out and subsequently, the building plan has been sanctioned. As per the approved lay out, certain areas were earmarked for public purposes such as children's playground, garden, well, etc . A plot measuring 1800 Sq. feet was earmarked for the children's playground and it is the only play ground for the AG's Colony, Andal Nagar, Krishnaraja Nagar, Ganesh Nagar, Mahalakshmi Nagar, Mohanapuri, V.V. Colony, Shaw Wallace Colony, Bhagyammal Nnaga etc. The petitioner-Society has executed a gift deed in favour of the Velacherry Town Panchayat Union in respect of the public roads specified.

(2.) IN June 1998, the respondents started accumulating the building materials in the play ground and started to prepare the ground for construction. Immediately, the petitioner-society sent telegraphic notice and made written and oral representations to the respondents to desist from changing the user of the plots. Since there is no response from the respondents, the petitioner filed a Suit O.S. No. 4108 of 1998 before the XI Assistant Judge, City Civil Court, Madras seeking an order of injunction restraining the respondents from putting up any construction in the playground plots. The petitioner also filed an application for interim injunction in I.A. No. 9601 of 1998 and notice was ordered as early as 8.6.1998. After receipt of the notice in the said application, the respondents had constructed the building and put to use for their office. Now this writ petition has been filed for the issuance of a Writ of Mandamus directing the respondents to remove forthwith all the constructions in the petitioner's properties situate in S.F. No. 582 part, 584, 585, a playground area of 10800 Sq.Ft. lying 6n the west of First Main Road, and a well and garden of an extent of 6600 Sq.Ft. lying to the east of First Main Road, Mahalakshmi Nagar (West Velacherry), Adambakkam, Chennai-88.

(3.) BEFORE I part with the case, I have to observe that nowadays, it has become the order of the day by the public authorities in putting up construction in the public places earmarked for some other purpose. When under the sanctioned lay-out, the place is earmarked for a particular purpose, a duty is cast upon the public authorities to see that the place is utilised only for that purpose. The open space is insisted while sanctioning the lay-out, taking into consideration of the environment of the entire area and requirement of free air and light for the residents. When the owner of the property seeks sanction of the lay-out, he is forced to leave that much of open space for the convenience of those, who are going to purchase the plots and the authorities have to maintain the same. The purchasers, who are satisfied with the layout are purchasing the plots with the legitimate expectation that the sanctioned lay out will be maintained as it is. Only in order to prevent the owner of the land to misuse the open spaces earmarked for some other purposes, the owner is compelled to execute a gift deed in favour of the municipality or the Corporation as the case may be. When that be the case, the municipality or the Corporation is also expected to maintain the layout as it is without interfering with the open space. As it has been held in the case of Pt. Chet Ram Vashist v. Municipal Corporation of Delhi (1995) 1 SCC 47) the public authority is only a custodian in respect of the land gifted by the owner. It has been held as follows: "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 lo 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 lay out plan. But the question is, does it entitled 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. The Corporation by virtue of the land specified as open space may get a right as a custodian of public interest to manage it in the interest of the society in general. But the right to manage as a local body is not the same thing as to claim transfer of the property itself. The effect of transfer of the property is that the transferor ceases to be owner of it and the ownership stands transferred to the person in whose favour it is transferred. The resolution of the committee to transfer land in the colony for park and school was an order for transfer without there being any sanction for the same in law".