THE HONOURABLE MR v. The Member Secretary, Chennai Metropolitan Development Authority, No.1, Gandhi Irwin Road, Egmore

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 9.10.2007CORAM:THE HONOURABLE MR.JUSTICE ELIPE DHARMA RAOANDTHE HONOURABLE MR.JUSTICE S.TAMILVANANWrit Appeals No.478 and 1026 of 2007and M.P.No.2 of 2007 in W.A.1026 of 2007W.A.No.478 of 2007:1.V.Gopinath2.Sangath Apartment Phase I, II, III & IV Owners Association, rep.by its President Mr.R.Ganesan3.K.S.Mani4.R.Dayalan ... Appellants/3rd Party in WP.4766/07Vs.1.The Member Secretary, Chennai Metropolitan Development Authority, No.1, Gandhi Irwin Road, Egmore, Chennai-6. ..Respondent/1st Respondent in WP.4766/072.The Commissioner, Corporation of Chennai, Ripon Buildings, Chennai. ..Respondent/2nd Respondent in WP.4766/073.Association of Vasanth Apartments Owners (Reg.No.18/2007) rep.by its General Secretary, 100 Feet Bye-pass Road, Velacherry, Chennai-42. ... Respondent/Petitioner in WP.4766/07 https://hcservices.ecourts.gov.in/hcservices/ W.A.No.1026 of 2007:The Commissioner,Corporation of Chennai,Ripon Buildings,Chennai-600003 ... Appellant/2nd Respondent in WP.4766/07Vs.1.Association of Vasanth Apartments Owners, rep.by its General Secretary, 100 Feet Bye-Pass Road, Velachery, Chennai-600042 ..Respondent/Petitioner in WP.4766/072.The Member Secretary, C.M.D.A., No.1, Gandhi Irwin Road, Egmore, Chennai-600006... Respondents/1st Respondent in WP.4766/07Writ Appeals preferred under Clause 15 of the Letters Patent asagainst the order passed by the learned single Judge of this Court inW.P.No.4766 of 2007, dated 20.2.2007. Presented to this Court underArticle 226 of the constitution of India to issue a writ of mandamusdirecting the first respondent to permit the petitioner association on thedevelop 1164.75 sq.m. area of vacant lands comprised in comprising inSurvey Nos.379/1 and 380/4 and reserved as Open Space for communal andrecreational purposes in first respondent's approval inP.P.No.B1/24729/199/A/F/97 dated 16.5.97 as park with recreationalfacilities for the members of the petitioner association and maintain thesame.For appellants inW.A.No.478 of 2007: Mr.S.KumarFor appellant in: Mr.P.S.Raman, W.A.No.1026 of 2007: Addl.Advocate General forwho is R.2 in Mr.A.Mohammed Gouse W.A.No.478/2007 and Mr.J.Ravindranand for R.1 in W.A.478/2007who is R.2 in WA.1026/2007For R.3 in W.A.478/2007, who: Mr.R.Selvakumaris R.1 inW.A.1026/2007 https://hcservices.ecourts.gov.in/hcservices/ COMMON JUDGMENTELIPE DHARMA RAO, J.Vasanth Apartments was developed as a Group Development inS.Nos.376/2 and 3, 379/1 and 380/4 and 5 in Velacherry village withinChennai City and it contains 12 blocks, out of which 11 blocks, eachcontaining 16 to 18 flats, are residential ones. The entire buildingswere completed and the flats were sold to the public and completelyoccupied by the purchasers during 2001. The total extent of the layoutbeing more than 10,000 sq.m., 10% of the area has been reserved as OpenSpace for communal and recreational purposes as per Rule 19(b)(ii) of theDevelopment Control Rules and accordingly, as per the finally approvedplan dated 16.5.1997, an extent of 1164.75 sq.m. (12,532 sq.ft.) area hasbeen reserved as open space and transferred to the Chennai MetropolitanDevelopment Authority by way of a Gift Deed dated 18.2.1994. 2. Thereafter, the Association of Vasanth Apartments Owners, hasfiled W.P.No.4766 of 2007 before this Court praying to issue a Writ ofMandamus, directing the Chennai Metropolitan Development Authority todevelop 1164.75 sq.m. Area of vacant lands comprised in Survey Nos.379/1and 380/4 and reserved as Open Space for communal and recreationalpurposes for the members of the said Association. The case of the saidAssociation is that despite a lapse of 12 years from the date of giftingthe property to the CMDA, the open space area had not been developed intoa park and therefore, they have given a representation on 6.10.2006seeking permission to maintain the area as a park and since there is noresponse, they have filed the writ petition.3. A learned single Judge of this Court, has allowed the said writpetition directing the respondents therein to permit thepetitioner/Association to maintain the open space area reserved as a parkwith recreational facilities in accordance with the Development ControlRules. It is also ordered that if the respondents come across anyviolation, it is always open to them to take action in accordance with lawand that it is the duty of the respondents to maintain such open spacearea as park and if the respondents fail to do the same, the associationof residents should always be welcomed to do the same subject to theprovisions of the rules.4. Aggrieved against the said order of the learned single Judge, theother residents of the area, who are not the parties to the writ petition,have filed Writ Appeal No.478 of 2007 on 5.3.2007, obtaining leave fromthis Court. Their contention is that at the time of construction, theland owners earmarked a portion of the land i.e. 11,836 sq.ft. as OpenSpace Regulation area for road and park and gifted the same to the CMDA bya gift deed dated 18.2.1994 and the Corporation of Chennai has formed aroad in that land during the year 2003 itself and has been maintaining thesame, but the Writ Petition No.4766 of 2007 had been filed suppressing the https://hcservices.ecourts.gov.in/hcservices/ above fact. It has also been submitted that the Corporation, with a viewto increase the road level, dumped the quarry rubbish on the side of theroad, but the Association of Vasanth Apartments Owners has misconceivedand focused to the Court that there is a threat of encroachment by privateparties in the land and obtained the order and thereafter, they havesuddenly blocked the road, which is the shortest link from West Velacheryto East Velachery-Vijaya Nagar and also the access to Venkateswara Nagar,M.G.R.Nagar, Devikarumariamman Nagar etc. where 1 lakh people are living,by dumping debris and erected a board showing that the said area is arecreational park for the residents of Vasanth Apartments, as a result ofwhich people are unable to get access to the other part of the road whichcaused great hardships to the public.5. When this Writ Appeal No.478 of 2007 has come up for admission,the First Bench of this Court, by the order dated 3.4.2007 appointedMs.D.Nagasaila as an Advocate-Commissioner to inspect the site toascertain as to whether there is an alternative approach road to 100 feetbye-pass road barring the OSR area, which is under dispute.6. Pursuant to the said directions, the learned Advocate-Commissionerhas visited the disputed site on 8.4.2007 and submitted her report alongwith a sketch on 10.4.2007. In her report, the learned Advocate-Commissioner has submitted that while the disputed OSR site is not theonly approach road to the 100 ft. bye-pass road, it was noticed that thefirst approach road viz. the Venkateswara Nagar third main road is verynarrow, with too many bends, making it unsuitable for handling the largevolume of traffic in this densely populated area; that the second approachroad viz. Vijay Nagar first main road is also narrow, but is reasonablystraight, as opposed to the first approach road and this second approachroad, beginning at the Vijaya Nagar 1st main road and passing through theDevi Karumari Amman 4th street is however circuitous and creates abottleneck at its entrance which is at the junction of the Vijaya NagarBus stand.7. Thereafter, on 9.4.2007, the Corporation of Chennai has filed WritAppeal No.1026 of 2007, as against the order passed in the Writ PetitionNo.4766 of 2007. It is the case of the Corporation that by the gift deeddated 10.2.2004, the donor had agreed to convey and assign, in theinterest of public, unto the donee (viz. the Corporation) all that landsfor roads, parks and other open space situate in S.Nos.379/1 (part) and380/4 (part) which is for the use of public to the extent of 1100 sq.metre(11,836 sq.ft.); that in the year 2003 itself, the Corporation has formeda metalled road so as to provide a direct as well as short link to theVelachery 100 feet bye-pass road from the adjoining areas likeVenkateswara Nagar, M.G.R. Nagar, Devi Karumari Amman Nagar etc.; that theCorporation has already initiated action for acquisition of Dhandeeswarartemple land, which is hardly 75 metres from the OSR land from HR and CEDepartment, so as to form shortest link Road from West Velachery to EastVelachery-Vijaya Nagar; that nobody had objected the formation of metalledroad in the area; that the disputed portion is already formed as a link https://hcservices.ecourts.gov.in/hcservices/ road, connecting Velachery 100 feet bye-pass road to the areas such asVenkateswara Nagar, M.G.R.Nagar, Devi Karumari Amman Nagar etc. and noother road is available to link the said areas with short distance and byproviding the link road, the residents numbering about one lakh will bebenefited and the metalled road is in existence for the use of the publicand it is under the maintenance of the Corporation of Chennai till date. 8. Since both these writ appeals arise from out of the order passedby the learned single Judge in W.P.No.4766 of 2007, dated 20.2.2007, theyare heard together.9. On a perusal of the entire materials placed on record and uponhearing the learned counsel on either side, we are able to find thatVasanth Apartments is situated on the 100 feet bye-pass Road inVelacherry, a fast growing commercial and residential hub of the city. Ascould be seen from the sketches filed not only by the Advocate-Commissioner but by the appellants as well, the Open Space area, if madeuse as a road after constructing a culvert or a bridge over the drainrunning along the entire length of the road, would, undoubtedly be ashort-link Road to the 100 feet bye-pass road, providing easy andimmediate access to the 100 feet bye-pass road to many of the localresidents. On the other hand, if it is not made use of as a road and itsentrance point at the petrol bunk on the 100 feet road is closed either byerecting any compound wall, as has been done by the Vasanth ApartmentsOwners illegally or by developing a park on the open space area, all theresidents in the area have to take comparatively much long routes likeeither Venkateswara Nagar 3rd main road or Vijaya Nagar first main road,both seems to be narrow, presumably with heavy flow of traffic, takinginto consideration the proximity of the locality.10. There is no dispute that in compliance with the provisions of theDevelopment Control Rules of the CMDA, the original owners of the land,while developing it into apartments, have executed a gift deed on18.2.1994 in favour of the CMDA. The relevant portions from the said giftdeed dated 18.2.1994 are extracted hereunder::"To comply with the rules and regulations prevailing now, theDONOR (the original owners) in the interest of public has agreedto transfer the roads and parks and other open spaces hereunderdescribed through a gift deed in favour of DONEE (CMDA) and DONEEhas agreed to accept the same.Now this indenture witnessth that the DONOR doth herebygive, grant, convey and assign in the interest of public unto theDONEE who hereby accepts the same all that lands for roads, parksand other open space situated in S.Nos.379/1 (part) and 380/4(part) which is for the use of the public comprised in layoutsketch enclosed within registration sub-district of Madras southand registration district of Madras Central and more particularlydescribed in the schedule hereunder written and the DONOR doth https://hcservices.ecourts.gov.in/hcservices/ hereby covenant with the DONEE that the DONOR now does have goodright to grant, convey and assign the lands of roads/parks herebygranted, conveyed and assigned upto the "DONEE" with the manneraforesaid and that the "DONEE" shall and may at all timeshereafter peacefully and quietly possess and enjoy the said landsof roads/parks free from all encumbrances whatsoever without anylawful eviction, interruption, claim, whatsoever, from or by the"DONOR" or any person claiming under or interest for him andfurther that the "DONOR" and all person having lawfully orequitably claiming any rights on roads/parks or interest with thesaid premises or any part thereof from under or interest for the"DONOR" or from or under any of his ancestors shall and will fromtime to time and at all times hereafter at the request of andcost of the "DONOR" do execute and register or cause to be doneexecuted and registered all such acts, deeds and thingswhatsoever fro further and more perfectly assuring the said landsor roads and parks every part thereof unto the "DONEE" in themanner aforesaid or as shall or may be reasonably required." 11. While such are the averments in the gift deed, it has beencontended on the part of the writ petitioner/Vasanth Apartments residentsthat the OSR area has to be used only for communal and recreationalpurposes of members of the Vasanth Apartments as they do not have anyother space for recreational purposes. It has also been argued that theOSR area cannot be formed as a public road by the Corporation as the sameis not permissible under the Development Control Rules, which has theoverriding effect over the Statute governing the Corporation. They haveplaced reliance on the schedule of property in the gift deed, which readsas follows:"All that piece and parcel of area measuring 1100 sq.m. Reservedfor parks or open spaces and marked in red colour of the layoutsketch enclosed herein situated in S.Nos.379/1 (Part) and 380/4(Part) of Velacheri village...."12. It seems the writ petitioner wants to seek benefit from theinappropriately couched wordings in the 'schedule' of the gift deed, whichis differently worded than the import and purport of the gift deed, thecontents of which are already extracted supra. The omission of the word'roads' either inadvertently or otherwise in the schedule of the gift deedcannot give any right to the writ petitioner Association, so as to saythat the OSR area has to be made use of only to form a park by theCorporation or on its failure by the residents association of theapartments, since any document has to be read in its entirety tounderstand its contents and not in piecemeal and selectively to suit one'sconvenience. As could be seen from the contents of the gift deed, as hasalready been extracted supra, the entire area has been assigned to theCMDA free from all encumbrances, in the interest of public, and nobodycould claim any right or interest over the same including the donorhimself. https://hcservices.ecourts.gov.in/hcservices/

13. In this connection, it is useful to cull out the relevantportions in the "Table", appended to Part-III General Provisions in the'Development Control Rules for Chennai Metropolitan Area', as amended upto September,2004, which are as under:"B. Streets and Roads:Description(1)Minimum width(2)Remarks(3)(i) Streets intended toserve not more than 10plots and/or subject toa maximum length of 120metres7.2. metres (24')All streets shall becomepublic. The landowners/developers shallhand over thesestreet/roads portionthrough a deed to thelocal authorityconcerned, after formingthe roads as perspecifications givenunder relevant sectionof Chennai CityMunicipal CorporationAct or Panchayat Act orTamil Nadu DistrictMunicipal Act(ii) Streets intended toserve not more than 20plots and/or subject toa maximum length of 240metres9.0 metres (30')-do-(iii) Roads of lengthmore than 240 metres butbelow 400 metres12.0 metres (40')-do-(iv) Roads of lengthbetween 400 metres to1,000 metres18.0 metres (60')-do-(v) Roads of length morethan 1,000 metres24.0 metres (80')-do- https://hcservices.ecourts.gov.in/hcservices/

14. From the above Rules, it is clear that all streets shall becomepublic. Therefore, in no uncertain terms, it could be held that CMDA isthe absolute owner of the land assigned to it by the original owners byway of the gift deed in the interest of public, but definitely not for thesole interest of the Vasanth Apartment occupants. Therefore, the entirewrit petition filed by the Association of the Vasanth Apartment Ownersunder the assumption and presumption that the OSR land belongs to them, iscompletely a misconceived one and should have been dismissed at itsthreshold, since pursuant to the Gift Deed, the OSR land solely and whollyvests only with the CMDA and therefore, writ petitioner has no right toclaim over the said OSR land.15. From the report submitted by the learned Advocate-Commissionerthat though the katcha road on the OSR site was not linked to the 100ft.road, since the land adjacent to it was a petrol bunk, the people ofthat area were using the entry from the petrol bunk to approach the katcharoad on the OSR site. It is also not in dispute that material was broughtin by the Corporation of Chennai for the purpose of laying a pucca road onthe OSR site. 16. The Association of Vasanth Apartments Owners allege that thefirst appellant in W.A.No.478 of 2007 by name V.Gopinath is having aresidential complex on the Northern side of the OSR area and he converteda portion of his residence into six commercial shops without any approvalof the CMDA for which both the CMDA and Corporation of Chennai remainsilent spectator and failed to exercise their powers to demolish the saidillegal commercial shops run by the first appellant without approval ofthe CMDA and the appellants in W.A.No.478 of 2007 with ill intention tousurp the OSR area for their own use under the guise of public road tolegalise their illegally functioning commercial shops have filed theappeal. Since it is not the subject matter in this case, we cannot probeinto all such allegations made by the writ petitioners against theappellants, particularly against the first appellant. However, since ithas been complained that the law enforcing authorities viz. CMDA and theCorporation of Chennai have remained mute spectators for the illegalactivities of the appellants particularly the first appellant, the writpetitioners are permitted to make a representation to the authoritiesconcerned, if they are so advised, within four weeks from the date ofreceipt of a copy of this order, bringing to their notice about thealleged illegality, in which event, the CMDA and the Corporation ofChennai are directed to consider the representation and pass orders onmerits and in accordance with law, after affording sufficient andreasonable opportunities to both the parties concerned, within six weeksfrom the date of receipt of such a representation. https://hcservices.ecourts.gov.in/hcservices/

17. When the land has been assigned in the year 1994 in favour of theCMDA by way of the Gift Deed, neither the CMDA nor the Corporation ofChennai have taken any step to make use of the land for the interest ofpublic. It is clear from the report filed by the Advocate-Commissionerand the photographs filed before us and the other materials available onrecord that in the OSR area, there is a katcha road, which is said to havebeen laid by the Corporation in the year 2003. Probably because of thiskatcha road and the usage of the same as road by all the residents in thelocality, the occupants of the Vasanth Apartments might have feltdisturbance, which would have prompted them to make a representation tothe Corporation to develop a park in the said area or in the alternativeto permit them to develop and maintain a park for their recreationalpurpose besides illegally constructing a compound wall, separating thepetrol bunk and the compound wall for about a length of 30 feet separatingthe unbridged 11 feet wide open canal upto ground level, so as to closethe way once and for all. At this juncture, it is to be pointed out thatthe Vasanth Apartments is divided by a compound wall from this area and itis also not made clear by the Vasanth Apartments Owners Association thatthe said land, which was gifted to the CMDA, is part of their lay out.18. It has also been alleged that under similar circumstances, theCMDA has permitted all the residents associations in Velachery to maintainthe open spaces as recreational parks in the nearby area viz.K.G.Apartments, Sai Sarovar etc. Each case has to be viewed and decidedon its own merits and since in the case on hand, in the interest ofthousands of general public residing in and around the area, theauthorities have taken a wise decision to lay a road to have easy andimmediate access to the 100 ft. road, the same cannot be found fault with.19. Further more, it has been brought to our notice that with a viewto form connecting road to 100 feet bye-pass road, the Chennai Corporationhas already addressed the Commissioner, Hindu Religious and CharitableEndowments Department to transfer and convey the land belonging toArulmigu Dhandeeswarar Temple, Velachery, Chennai in favour of theCorporation and also obtained the said land to form the connecting roadfrom Hindu Religious and Charitable Endowments Department.20. Thus, though belatedly, now the CMDA and the Corporation ofChennai are taking all efforts to lay a pucca road in the OSR area for theconvenience of nearly one lakh people in the area including the residentsof Vasanth Apartments. In this city, ill-famous for its bumper to bumpertraffic and the related hazards faced by the road users day in and dayout, any such step taken by the civic authorities to ease such bottlenecktraffic congestions should be appreciated and welcomed without allowinganybody to put spokes in the wheel of development, as has been attemptedon the part of the Association of Vasanth Apartments Owners in the case onhand. https://hcservices.ecourts.gov.in/hcservices/ For all the above reasons, since it has been found that the writpetitioner has no right or interest, whatsoever, in the OSR land, and theprayer in the writ petition itself is misconceived, both these writappeals are allowed, thus setting aside the order passed by the learnedsingle Judge. No costs. Consequently, M.P.No.2 of 2007 inW.A.No.1026 of 2007 is closed.RaoSd/-Asst.Registrar/true copy/ Sub Asst.RegistrarTo1.The Member Secretary, Chennai Metropolitan Development Authority, No.1, Gandhi Irwin Road, Egmore, Chennai-6.2.The Commissioner, Corporation of Chennai, Ripon Buildings, Chennai.3.The Commissioner, HR&CE Department, Nungambakkam,Chennai.+1 cc to Mr.S.Kumar, Advocate Sr.No.62295.+3 ccs to Mr.M.Mohamed Ghouse, Advocate Sr.No.62756,62296,62758.+1 cc to Mr.R.Selvakumar, Advocate Sr.No.62462.ASM(CO)dcp/30.10 W.A.Nos.478 & 1026 of 2007