Madrasdated High Court · 2007

For 5th respondentMr.R.Muthukumarasamy, Sr. Counselfor Mr. A. JenasenanORDERThe petitioner, a Residents Welfare Association, has filedthis writ petition seeking a writ of certiorari calling for therecords on the file of the first respondent in his proceedings inNa.Ka.No.4172/2006-GR dated 26.04.2006 and also the proceedings ofthe second respondent in Na.Ka.No.3701/05/R3 dated 03.02.2006 andquash the same.2.The petitioner's case in short, as culled out from itsaffidavit, is as under:2.1The first respondent, vide his proceedingsdated 04.08.1997, granted permission to the secondrespondent to form a layout at Thandalam Village,Tiruvarur District. 2.2Under clause 16 of the said proceedings, thesecond respondent was required to set apart open spacein the layout for the purpose of park, children'splayground, library, community hall and school andhand over the same to the local administration by wayof a gift deed.2.3Based on this permission from the firstrespondent, the fourth respondent formed a layout inthe name and style of “Cooperative Nagar HousingSociety” consisting of 318 housing plots, besidesallotting open space as required under clause 16 ofthe first respondent's proceedings dated 04.08.1997.2.4Pursuant to the fourth respondent'sadvertisement, the members of the petitionerassociation purchased housing plots considering thefact that the layout had been approved by the firstrespondent with necessary provision for park,community hall, etc. 2.5That being so, the fourth respondent, by wayof newspaper advertisement dated 13.10.2002, calledfor tenders for the purchase of plots measuring 14,168sq. ft. and 15,360 sq. ft. meant for community halland children's school respectively. 2.6In response, the petitioner, by its letterdated 16.10.2002, requested the third and fourthrespondents not to sell the plot allotted for the https://hcservices.ecourts.gov.in/hcservices/ purpose of community hall. Yet, the fourthrespondent, by its letter dated 16.10.2002 addressedto the petitioner, stated that the subject plot wassold to the fifth respondent, an individual, only forthe purpose of construction of community hall and assuch, his action was not illegal. 2.7Aggrieved by this reply of the fourthrespondent, the petitioner, by a representation dated19.08.2005, requested the third respondent not tosanction the building plan for the construction ofkalyana mandapam by the fifth respondent in the plotallotted for construction of community hall. 2.8Putting the petitioner's effort in vain, thesecond respondent, by his proceedings dated03.02.2006, advised the third respondent to accordsanction to the fifth respondent for the constructionof kalyana mandapam, subject to certain conditions.2.9In challenge to the second respondent'sproceedings dated 03.02.2006, an appeal was preferredby the petitioner before the first respondent and theappeal was dismissed confirming the order of thesecond respondent. 2.10As against these orders of the first andsecond respondents, the present writ petition. 3.The first respondent, in reply, has filed countercontending that:a.the technical approval for a layout of about 29.87acres was given with certain reservations such as that 10.10%of non-saleable open space allotted for parks should be handedover to the local body and that 1.09%, 1.18% and 1.08% of openspace was allotted for the purposes of shops, primary schooland community hall respectively which are sites saleable bythe layout promoter;b.the area meant for community hall and school aresaleable by the layout promoter only for the purposes forwhich they were allotted and they need not be handed over tothe local bodies, as contended by the petitioner and variousaspects such as this were given due consideration by the firstrespondent before passing of the impugned order and as such,his order is not liable to be set aside;c.None of the terms and conditions of the layout andPanchayat Building Rules has been violated and the layout istreated as a mixed residential area with plots allotted forschools, community hall and commercial complexes and thePanchayat Union has given approval for kalyana mandapam which https://hcservices.ecourts.gov.in/hcservices/ can be used for community purposes as well;d.the fourth respondent has got prior approval dated24.07.1999 from the Registrar of Cooperative Societies(Housing), Chennai 20 for inviting tenders;e.out of the area of 1,34,460 sq. ft. allotted forpark, an extent of only 1,09,892 sq. ft. was handed over tothe local body by the promoter society, leaving a balance of21,568 sq. ft. which was directed to be handed over to thelocal body and it has nothing to do with the saleable areaallotted for community hall which was sold to a member of thesociety by following the due procedure;f.Clause 16 has not at all been violated inasmuch ascommunity hall does not find place in the list of publicpurpose areas earmarked for handing over to the local body andcommunity hall earmarked in the approved lay out is not forcommon enjoyment of the inhabitants and it is a saleable siteby the layout promoters;g.the second respondent has not violated the layoutcondition granted by the first respondent; andh.the order dated 26.04.2006 holding that the areaover and above 10.10% allotted for shops, community hall,kindergarten school, health centres, etc. is saleable andconfirming the order of the second respondent dated 03.02.2006is only as per the rules in existence and as such, does notcall for any interference by this Court.4.The fourth respondent who is the Special Officer of theTiruvarur Cooperative Housing Society has contended that:a.as per the proper permission obtained from theRegistrar of Cooperative Societies (Housing) vide hisproceedings dated 25.01.1995 and 03.06.1996, the lay out wasformed and allotment was made to the members of the petitionerassociation and possession also handed over to them;b.the land meant for formation of road and park hadbeen handed over to the Village Panchayat by way of a giftdeed and since no community hall was constructed in the plotallotted for it, a tender was issued for sale of the said plotand the fifth respondent who was the highest bidder in theauction was handed over possession of the plot and she hadalso started construction in the said plot;c.after confirmation of auction in favour of the fifthrespondent, necessary mutation of records was made in theoffice of the Registrar of Co-operative Housing Societies andthat apart, patta was also transferred in the name of thefifth respondent in the Revenue Department and the fifth https://hcservices.ecourts.gov.in/hcservices/ respondent was also put in absolute enjoyment and peacefulpossession of the property in question;d.the fifth respondent, after the auction wasconfirmed in her favour, obtained planning permission from thecompetent authority for putting up construction andaccordingly, planning permission was granted to her;e.the petitioner has no locus standi to file this writpetition questioning the sanction granted by the Registrar ofCooperative Societies (Housing), Chennai and the planningpermission issued by the competent authority and the matter ispurely between the fifth respondent and the CooperativeDepartment.f.the sale process through auction was over in 2002itself whereas this petition has been filed only in 2006 andif at all the petitioner were having a good intention that thesaid plot should be used only for construction of a communityhall, it should have taken earnest steps in the very beginningstage itself and cannot challenge the action of therespondents at this stage by filing a writ petition; andg.there is no whisper in clause 16 of the proceedingsof the first respondent about allotting open space forconstruction of a community hall and handing over of the sameto the local authority by way of a gift deed, as contended bythe petitioner and provision was made only in respect of park,kindergarten school, library, etc.; https://hcservices.ecourts.gov.in/hcservices/

5.For her part, the fifth respondent has filed countercontending that:a.in clause 16 of the proceedings of the firstrespondent dated 04.08.1997 sanctioning to form a layout, openspace allotted for construction of community hall was not atall directed to be handed over to the local administration byway of gift deed, though an extent of 14,168 sq. ft. has beenallotted for construction of community hall and it was onlythe open space allotted for park, children's playground, fireservice, police station, library, post office and roads whichwas directed to be handed over to the Municipality.b.the Deputy Registrar, Housing Development,Thanjavur, in his letter dated 06.07.1999, had recommended tothe Registrar of Cooperative Societies (Housing), Chennai forpermission to sell six shop portions measuring an extent of12,643 sq. ft. and to sell by public auction extents of 14,168sq. ft. and 15,360 sq. ft. allotted for community hall andchildren's school respectively and accordingly, the Registrarof Cooperative Societies (Housing), Chennai, vide hisproceedings dated 24.07.1999, had permitted the fourthrespondent to sell these areas at the rate of not less thanRs.25/- sq. ft. by calling for sealed tenders with thecondition that the plot should be used only for the purposefor which the open land is sold.c.pursuant to the sanction granted by the Registrar ofCooperative Societies (Housing,) the fourth respondentadvertised by way of tender auction sale notice in Dinamalaron 26.09.2002 and once again on 13.10.2002 and she was thehighest bidder in the said tender auction sale and on paymentof necessary sale price, the sale deed came to be executed inher favour in which it was specifically stated that the openspace should be used only for constructing community hall andshe also obtained “No Objection Certificate” from the FireService Department and patta dated 11.11.2005 from theTahsildar, Tiruvarur District; https://hcservices.ecourts.gov.in/hcservices/ d.the second respondent, vide his proceedings dated03.02.2006, had categorically communicated to the thirdrespondent that the community hall can be built withoutintervention or nuisance to other occupants of the plots andalso without causing pollution and with proper seweragefacilities and high-raised compound wall; e.the first respondent has rightly observed in hisproceedings that only 10% of the total extent of the land willhave to be reserved for open space and to be handed over tothe local administration and the open space beyond 10% of thearea can be sold subject to the condition that it should beused only for the purpose for which it is apportioned and assuch, there is no impugnity in the proceedings of the firstrespondent in and by which the petitioner's appeal has beenturned down;f.pursuant to the order of the first respondent dated26.04.2006, she had obtained the plan duly approved by thethird respondent for the purpose of construction of kalyanamandapam vide proceedings dated 22.05.2006 and had spent ahuge sum of money for the construction of the kalyana mandapamwhich will be certainly of some use to 318 families in theCooperative Nagar and it can also be used for conductingfunctions as well as public meetings; andg.the permission granted for construction of kalyanamandapam in the open space reserved for construction ofcommunity hall is neither illegal nor unlawful as it has beengranted by the competent authority only after compliance offormalities as required by the first respondent as well as thethird respondent.6.The petitioner has filed its reply affidavit contendingthat:a.the proceedings dated 04.08.1997 of the firstrespondent according permission to form the layout clearlydemarcates the place for samudaya koodam as a publicallocation meant for the common use of the 318 allottees inthe layout and the layout is a self-contained unit in whichprovision has been made for several public utilities likepark, school, community hall, public utility places like fireservice station, police station, library, post office, etc.besides public roads in it and this entire area constitutesthe public utility area meant for the common use of theresidents and this cannot be sold away to anybody and cannotbe put to any other use by private individuals;b.the first respondent has failed from his statutory https://hcservices.ecourts.gov.in/hcservices/ duty of ensuring that the sanctioned plan is implemented infull and has thus, violated the provisions of law and theconditions attached to the layout and the fourth respondenthas not handed over the vacant space by way of gift deed tothe village panchayat which can be seen from the submission ofthe panchayat itself that an area of 64,041 sq. ft. of commonutility land including samudaya koodam as provided in thelayout has not been handed over by the fourth respondent tothe panchayat for maintenance.c.the allotment order given to its members indicatesnot only the price of plots @ Rs.15/- per sq. ft. but also theprice for the development charges for the common utilitiesincluding specifically the community hall (samudaya koodam) @Rs.10.50 per sq. ft. and after receiving Rs.36,000/- per plotof one ground and Rs.25,200/- towards development charges forutilities including road, park, school and samudaya koodam, itis not open to the fourth respondent to sell away thecommunity hall portion to the fifth respondent;d.the community hall is set apart for common use ofthe residents of the layout and it is not meant for use byoutsiders and the first respondent had specifically asked thesaid space to be handed over to the panchayat for putting upof community hall and the third respondent has also passed aresolution on 15.02.2006 seeking clarification and guidancefrom the District Collector on the sale of the community hallto the fifth respondent;e.Clause 16 clearly of the layout conditions of thefirst respondent indicates that common public utilities likepark, children's playground, library and community hall shouldbe handed over to the local administration by way of gift deedand the details of the layout sanction are indicated in theschedule which clearly states 14,168 sq. ft. or 1.08% of thetotal extent towards community hall for the usage of theallottees occupying 318 house plots;f.when the sale of the space allotted for samudayakoodam itself is illegal, all subsequent actions includingmutation of records in the office of the Registrar ofCooperative Societies and in the Revenue Department are alsoliable to be set aside as illegal and the mutation of recordsdoes not create any right in favour of the respondents;g.it has been protesting against the sale of the saidplot to the fifth respondent right from the date the fourthrespondent had called for sealed tenders and the numerouscorrespondence and proceedings before the respondents 1 to 3would prove that it has been agitating against the said saleright from the beginning; https://hcservices.ecourts.gov.in/hcservices/ h.the fourth respondent, having obtained approval ofthe layout based on the condition that the said space shall beearmarked for community hall purpose for the use of theresidents of the layout, cannot turn back and say that he isentitled to sell the said land to third parties in violationof rules and that nobody can question him;i.its members who have put up houses in their plotsdeserve and are entitled to privacy and noise-free life andthey are deprived of this by the impugned orders passed by therespondents 1 and 2;j.there is no 10% embargo on open space in the layoutsanction order and when the first respondent has granted alayout where public utilities are clearly indicated whichincludes 14,168 sq. ft. of land earmarked for community hallfor the use of the residents, this land cannot be sold tothird parties for commercial exploitation like kalyanamandapam which definitely will disturb the tranquility in thearea;k.knowing fully well that the petitioner has submittedits objections and has vehemently proceeded through variouslegal forums and would also further pursue its remedies, therespondents 1 to 4 have taken a calculated risk in allowingthe fifth respondent to start the construction in haste; and l.the fifth respondent cannot claim equity aftercommencing construction in violation of the sanctioned planand in any event, the building is only in the foundation leveland the fifth respondent deliberated continued constructionfor more than 7 days even after the order of injunction passedby this Court and only after a police complaint was given, theconstruction was stopped.7.Heard Mr. K. Sridhar, learned counsel for the petitioner,Mr. A. Edwin Prabakar, learned Additional Government Pleader forrespondents 1 to 4 and Mr. R. Muthukumarasamy, learned SeniorCounsel appearing for the fifth respondent.8.The first and foremost contention put forward by thelearned counsel for the petitioner is that the impugned order ofthe first respondent is unconstitutional as it is violative ofArticle 300-A of the Constitution of India and against theprovisions of the Tamil Nadu Town and Country Planning Act, 1971and more particularly, Clause 16 of the layout conditions containedin the proceedings of the first respondent according permission toform the layout. His second contention is that when the housingscheme is granted to a cooperative housing society purely forresidential purpose, the fourth respondent ought not to haveallowed the fifth respondent to go ahead with the construction of akalyana mandapam which would only result in noise pollution and be https://hcservices.ecourts.gov.in/hcservices/ a perennial nuisance to the peaceful life of the inmates of thearea.9.The learned counsel for the petitioner has furthercontended that the fourth respondent cannot sell the lands in thelayout without getting the sanction of the General Body of theCooperative Housing Society and that too, in violation of theSociety's rules and by-laws. He has argued that the firstrespondent has erroneously passed the order dated 26.04.2006stating that only 10.10% of the land is earmarked for park andchildren's playground and the land over and above 10% set apart forshops, community hall and children's school can be sold to thirdparties for the said purpose which is in violation of his ownplanning permission dated 04.08.1997. It is further contended bythe learned counsel for the petitioner that the first respondent,having held that the fourth respondent had failed to handover anarea of 21,568 sq. ft. to the local administration, ought to haverejected the permission for construction of kalyana mandapam. 10.It is also the contention of the learned counsel for thepetitioner that when the land vests with the first respondent, hehas erred in holding that the fifth respondent has got title to thesubject land and had also failed to see that the fourth respondentdoes not have power to convey or sell the land to the fifthrespondent and thus, the sale effected in favour of the fifthrespondent is null and void.11.The learned counsel for the petitioner, in support of hiscontention that there should be a community hall for every 1,000persons, has taken me through Rule 18(4)(b) of the Tamil NaduPanchayats Building Rules, 1997 which reads as under:“For every 1,000 persons, there shall be a commonchildren playground, a primary school, a communityhall, a library and a recreation centre.”12.Per contra, the learned Additional Government Pleader hascontended that only the open space of 10.10% allotted for parkshanded over to the Municipality is not saleable and the open spaceallotted for shops, primary school and community hall is saleableand as such, the impugned order of the first respondent inconfirming the order of the second respondent is perfectly inorder. Attacking the contention made by the learned counsel forthe petitioner, he has pointed out that community hall does not atall find place in clause 16 of the first respondent's proceedingsaccording permission to form the layout and as such, the secondrespondent has not violated the layout condition imposed by thefirst respondent.13.The learned Additional Government Pleader has strenuouslycontended that only after getting approval from the Registrar ofCooperative Societies (Housing), Chennai, to call for sealed https://hcservices.ecourts.gov.in/hcservices/ tenders in respect of sale of open space allotted to children'splayground and community hall, tenders were called for in which thefifth respondent was the highest bidder and accordingly, thepossession of the said area was handed over to her and even revenuerecords were mutated in the office of the Registrar of CooperativeSocieties (Housing) and patta also was issued to the fifthrespondent and as such, there is no illegality in the sale effectedto the fifth respondent.14.Similarly, the learned Senior Counsel appearing for thefifth respondent, has contended that there is no whisper in clause16 of the layout conditions contained in the proceedings issued bythe first respondent and as such, the contention of the petitionerthat the open space earmarked for community hall has not beenhanded over to the local administration does not have legs tostand. 15.It is also the contention of the learned Senior Counselthat inasmuch as the fifth respondent was declared the highestbidder in the auction conducted and even possession of the plothanded over to her and moreover, when she had also obtained pattafrom the Tahsildar, Tiruvarur District and No Objection Certificatefrom the Deputy Director, Fire Service Department in addition toprior approval for construction of a kalyana mandapam which canalso be used for conducting public functions, the impugned order ofthe first respondent, upholding the order of the second respondentgranting permission to construct a kalyana mandapam has to beconfirmed and the writ petition has to be dismissed.16.To decide the case on hand, it would be useful to referto Rule 18 of the Tamil Nadu Panchyayats Rules which reads asunder:"Rule 18Common amenitiesIn every layout which has a provision for more than 10houses, the following minimum standard of amenitiesshall be provided:-1an open space for common public useas park, playground or recreation ground toan extent not less than 10 per cent of thetotal area of the layout2Such open spaces and commonamenities shall be so distributed in orderthat one such open space shall be availablefor every group of 25 houses.3There shall be provided one or more https://hcservices.ecourts.gov.in/hcservices/ public wells, public baths and latrines inevery layout to the satisfaction of theexecutive authority.4Facilities such as shopping,recreation centre, community hall and libraryshall be provided in accordance with the sizeof the development and based on the followingstandards:-aFor every 100 persons,there shall be at least one shop;andbfor every 1,000 persons,there shall be a common childrenplayground, a primary school, acommunity hall, a library and arecreation centre.”17.Further, it would also be useful to refer to Section 113and 113-A of the Tamil Nadu Town and Country Planning Act, 1971which run as under:Section 113Notwithstanding anything contained in this Act,the Government may, subject to such conditions as theydeem fit, by notification, exempt any land or buildingor class of lands or buildings from all or any of theprovisions of this Act or rules or regulations madethereunder.18.From a perusal of the entire records, it is seen that thefirst respondent, in his proceedings dated 04.08.1997, grantedpermission to the second respondent to form a layout at ThandalamVillage, Tiruvarur District. As per clause 16 of the saidproceedings which is roughly translated as under“The plots allotted for park, children'splayground, library, thiravidam, etc. should be sub-divided in the office of the Tahsildar and should behanded over as gift to the local administration.”the second respondent was required to set apart open space in thelayout for the purpose of park, children's playground, library, andschool and hand over the same to the local administration by way ofgift deed. Accordingly, a layout was formed in the name and styleof "Cooperative Nagar Housing Society" consisting of 318 plotsbesides allotting open space as required under clause 16 of theproceedings dated 04.08.1997. Pursuant to the fourth respondent's https://hcservices.ecourts.gov.in/hcservices/ advertisement, the members of the petitioner association purchasedhousing plots considering the fact that the layout was approved bythe first respondent with necessary provision for park, playground,library, community hall, school, etc. While that being theposition, there was an advertisement in the newspaper by the fourthrespondent on 13.10.2002 calling for tenders for the purchase ofplots measuring 14,168 sq. ft. and 15,360 sq. ft. meant forconstruction of community hall and school respectively. On seeingthe same, the petitioner, in its letter dated 16.10.2002, requestedthe respondents 3 and 4 not to sell the plot allotted for thepurpose of community hall. However, the petitioner received aletter dated 16.10.2002 from the fourth respondent stating that thesubject plot was sold to the fifth respondent, an individual, forthe purpose of construction of a community hall. Aggrieved by thisreply of the fourth respondent, the petitioner sent arepresentation on 19.08.2005 requesting the third respondent not tosanction building plan for the construction of kalyana mandapam bythe fifth respondent in the plot sold to her for construction ofcommunity hall. However, on 03.02.2006, the second respondentadvised the third respondent to accord sanction to the fifthrespondent for the construction of kalyana mandapam subject tocertain conditions against which an appeal was preferred by thepetitioner before the first respondent and the same was dismissedconfirming the order of the second respondent and these orders ofthe respondents 1 and 2 are impugned in this writ petition.19.On a perusal of the counter of the first respondent, itis seen that the technical approval for a layout of about 29.87acres was given by the first respondent with certain conditionssuch as that 10.10% of non-saleable open space allotted for parksshould be handed over to the local body and that 1.09%, 1.18% and1.08% of open space should be allotted for the purpose of shops,primary school and community hall respectively. According to thefirst respondent, the area meant for the community hall and schoolare saleable by the layout promoter only for the purposes for whichthey were allotted and they need not be handed over to the localbody and none of the terms and conditions of the layout andPanchayat Building Rules has been violated and the layout istreated as a mixed residential area with plots allotted forschools, community halls and commercial complexes and the PanchayatUnion has given approval for kalyana mandapam which can be used forcommunity purposes as well. There was a prior approval on24.07.1999 by the Registrar of Cooperative Societies (Housing) tothe fourth respondent for inviting tenders. Out of the area of1,34,460 sq. ft. allotted for park, an extent of only 1,09,892 sq.ft. was handed over to the local body by the promoter society,leaving a balance of 21,568 sq. ft. which was directed to be handedover to the local body and accordingly, it has nothing to do withthe saleable area allotted for community hall which was sold to thefifth respondent by following due procedure. It is the stand ofthe first respondent that clause 16 of the proceedings dated04.08.1997 has not at all been violated inasmuch as community hall https://hcservices.ecourts.gov.in/hcservices/ does not find place in the list of public purpose areas earmarkedfor handing over to the local body and community hall earmarked inthe approved layout is not for common enjoyment of the inhabitantsand it is a saleable site by the layout promoters and as such, thesecond respondent has not violated the layout conditions of thefirst respondent. Accordingly, it is possible that the area overand above 10.10% allotted for shops, community hall, kindergartenschool, health centres, etc. is saleable and therefore, as per therules, the authorities concerned have acted accordingly.20.According to the fourth respondent, as per the properpermission obtained from the Registrar of Cooperative Societies(Housing) vide his proceedings dated 25.01.1995 and 03.06.1996, thelayout was formed and allotment was made to the members of thepetitioner association and possession also was handed over to them.Necessary mutation of records was made in the office of theRegistrar of Cooperative Societies (Housing) and patta was alsotransferred in the name of the fifth respondent in the RevenueDepartment who, after the auction was over, obtained patta and putup construction. If at all the petitioner were having a goodintention that the said plot should be used only for constructionof a community hall, it should have taken earnest steps in the verybeginning stage itself.21.The fifth respondent also has confirmed that as perclause 16 of the proceedings of the first respondent dated04.08.1997, open space allotted for construction of community hallwas not at all directed to be handed over to the localadministration by way of gift deed though an extent of 14,168 sq.ft. has been allotted for construction of community hall and it wasonly the open space allotted for park, children's playground, fireservice, police station, library, post office and roads which wasdirected to be handed over to the Municipality. She has furtherconfirmed that the Deputy Registrar, Housing Development hadrecommended to the Registrar of Cooperatives Societies (Housing),Chennai for permission to sell six shop portions measuring anextent of 12,643 sq. ft. and to sell by public auction extents of14,168 sq. ft. and 15,360 sq. ft. allotted for community hall andchildren's school respectively and accordingly, the Registrar ofCooperative Societies (Housing), Chennai, as per the tenderprocedure has called for tenders and the fifth respondentparticipated in the tender proceedings and the land in question wasallotted to her and thereafter, she had started construction in thesaid plot. It is her strong case that the second respondent, inhis proceedings dated 03.02.2006, had categorically communicated tothe third respondent that the community hall can be built withoutintervention or nuisance to other occupants of the plots and alsowithout causing pollution with proper sewerage facilities and high-raised compound wall. 22.A reply affidavit has been filed by the petitionerquestioning the submissions made by the respective respondents https://hcservices.ecourts.gov.in/hcservices/ about the open space allotment for public utility and that thefirst respondent has failed from his statutory duty to ensure thatthe sanctioned plan is implemented in full and has thus violatedthe provisions of law and the conditions attached to the layout.It is also his case that the land in question which is allotted forcommunity hall cannot be sold to third parties for commercialexploitation like building of kalyana mandapam and the respondents1 to 4 have taken a calculated risk in allowing the fifthrespondent to start the construction in haste and the action of therespondents 1 to 4 in selling the plot in question to the fifthrespondent is not only violative of Article 300A of theConstitution of India but also against the provisions of the TamilNadu Town and Country Planning Act, 1971. His one more contentionis that the fifth respondent has no manner of title to the land inquestion and it is only with the first respondent.23.Admittedly, an area of 14,168 sq. ft. was earmarked inthe layout for community hall. Whoever is the buyer of the sitereserved for community hall as provided for in the layout, has touse it only for the purpose for which it stands earmarked. Theland meant for formation of road and park had been handed over tothe village panchayat by way of gift deed and since no communityhall was constructed in the plot allotted for it, the authorities,after proper permission from the Registrar of Cooperative Societies(Housing) have decided to go for sale of the said plot.Accordingly, a tender was called for after following the dueprocedure and the fifth respondent, who was the highest bidder inthe auction, was handed over the possession of the plot as early asin the year 2002 after the auction was confirmed in her favour.Also necessary mutation of records was made in the office of theRegistar of Cooperative Societies (Housing) and patta was alsotransferred in the name of the fifth respondent by the RevenueDepartment and the fifth respondent also was also put to absolutepossession and peaceful enjoyment of the property in question. Shealso applied for planning permission from the competent authorityfor putting up construction and accordingly, the authorities havegranted planning permission.24.Further, except a representation, the petitioner has notat all taken efforts, much less any serious efforts, to questionthe process of sale of land, either at the stage of tender or atthe stage of grant of planning permission from the Registrar ofCooperative Societies (Housing) or at the stage of mutation ofrecords by the Revenue Department or at least at the stage of grantof planning permission. Having remained silent for several yearsand during several stages, all of a sudden, the petitioner hadwoken up and filed the present writ petition.25.At this juncture,it is to be stated that clause 4 of thelayout conditions stipulates that plot allotted for that purposecan be used only for that purpose and it cannot be used for anyother purpose. It is further provided in clause 18 of the layout https://hcservices.ecourts.gov.in/hcservices/ conditions that:(i)the plot owners have to enter an agreementwith the executive authority to the effect that theywould abide by the stipulated terms and conditions. (ii)plots should be sold or given on lease onlysubject to the stipulated terms and conditions (iii)layout conditions should be registeredwith the office of the Registrar of CooperativeSocieties (Housing)(iv)the stipulated terms and conditions shouldbe incorporated in the sale agreements so as to have abinding effect on the seller as well as the buyer ofthe plots. 26.As far as the community hall is concerned, it is vestedwith the Registrar of Cooperative Societies (Housing) under whosecontrol the area specified for the community hall has been givenand six shops, one children's school and one community hall havebeen permitted for construction by the authorities concerned videproceedings dated 06.10.2002 and accordingly, the sale wasconducted by following the due procedure. Therefore, when it isnot in dispute that the plot in question was allotted for thepurpose of community hall, the petitioner cannot question the samewhen it is used for the purpose of constructing a kalyana mandapamwhich is also permissible as per the proposition settled by thisCourt on 21.04.2006 while deciding a similar case in in W.P.Nos.5106 and 1282 of 1996. The relevant portion of the said orderruns thus:“6. In W.P.No.13391/2002 (case law brought to thenotice of this court by the learned counsel for theHousing Board), a large area in a development schemewas earmarked for a school. That area was includedunder the saleable category. The land remained vacant,despite steps taken by the Housing Board to sell it.In order to mitigate any further loss on account of theland remaining unsold, a portion of that larger extentof land was carved out and re-classified as residentialplots. The principle that the authority had a right toconvert the usage of land for a purpose other thanthe one for which it was originally earmarked, if thatland is included in the category of saleable lands, wasaccepted by a learned Judge of this court in the abovereferred to writ petition. In the judgment of theHon'ble Supreme Court of India brought to the notice ofthis court by the learned counsel for thepetitioners/petitioner, an open area reserved for apublic park under the Act was sold to a trust to build https://hcservices.ecourts.gov.in/hcservices/ a hospital. That was challenged by the residents ofthat area before the Karnataka High Court. A learnedSingle Judge of that court dismissed that writ petitionwhile the Appellate Bench of that court, allowed thatwrit petition. Therefore, the proposed buyer wentbefore the Hon'ble Supreme Court of India. The SupremeCourt was considering the provisions of City ofBangalore Improvement Act, 1945 repealed by BangaloreDevelopment Authority Act, 1976 with subsequentamendments as they stood at that time. Reservation ofthe open space in that case as a park was under the1945 Act and section 76 of the Repealing Act saved allsuch reservations. From a perusal of the saidjudgment, it is seen that section 16 of the Actmandatorily provides for reservation of an area forpublic parks, etc., The law as it originally stood andas it stood amended, created an absolute bar in sellingor otherwise disposing any area reserved for publicparks. Only in that context, the Hon'ble Supreme Courtof India upheld the order of the Division Bench of theKarnataka High Court holding that the Act complainedof was a result of abuse of power. At the risk ofrepetition, this court wants to note that there is aStatutory bar in that case for selling the spaceearmarked for parks, etc., from being dealt with in anymanner contrary to the original purpose. The Hon'bleSupreme Court of India was dealing with a case in whicha space was reserved for park and which was decided tobe sold to a trust for the purpose of constructing ahospital. In the case on hand, from the abstract ofthe scheme, I have already noted that the spacereserved for "Community Centre" is included in"saleable lands" and therefore, with respect, I statethat on the facts available in the judgment decided bythe Supreme Court, it may not be possible to hold thatit gets attracted to the case on hand. The Hon'bleSupreme Court of India had been repeatedly cautioningthat before deciding to follow a case law, the factsand circumstances on which the case was decided must beborne in mind by all courts. In the other reportedjudgment of this court brought to my notice by thelearned counsel appearing for the petitioners, thiscourt was dealing with conversion of a park earmarkedin the original lay-out into one of a private land toenable the owner/promoter to construct a communityhall. Learned Judge of this court, who was dealingwith that case, held as hereunder:"The disputed property has been shown as apark in the lay-out plan; it may be open to theauthority to convert the use of the land forany other public purpose other than the purpose https://hcservices.ecourts.gov.in/hcservices/ for which the land was earmarked namely, a parkcan be converted into a place for hospital,school or kalyana mandapam, etc., for a commonuse; the purpose should continue to remain onlyas public and for the benefit of the entirecolony; but in that case the attempt is toconvert the property as belonging to the 4threspondent herself (owner), which is definitelynot permissible and the very lay-out,sanctioned and granted was only on theunderstanding that all the places marked ascommon would continue to remain as common."Only in the context of the above features, thiscourt held in that case that the conversion is withoutauthority of law. But in the case on hand, theabstract does not show that the place earmarked for"Community Centre" is meant for common use. On theother hand, it is included under the category "SaleableLands". The purpose mentioned is namely, for the useof "Community Centre". This only means that whoever isthe taker from the Housing Board on an agreed priceshall use the property only for the purpose of"Community Centre" and not for any other purpose.Under the scheme and the lay-out, it is not providedthat the above referred to space must remain as a openspace, since from the reservation it is clear that inany event a construction to house a "Community Centre"has to come up. Therefore the argument that, by theintended act, the "lung space" made available to thecitizen for good environment surroundings, has no legsto stand. Once that purpose i.e., Community Centre, isfound to be not reachable and the power to convert theusage is recognised, then, no illegality at all can befound in the proceedings challenged."27.In view of the settled proposition laid down in the orderof this Court referred to above that kalyana mandapam can be usedfor community purposes and taking note of the various proceedingsof the respondents 1 to 4 in and by which the plot in question wassold to the fifth respondent, particularly the fact that approvalwas granted by the authorities concerned as early as in January2002 for the construction of community hall, the petitioner isestopped from having an apprehension at this stage that the plotallotted for community hall may be exploited for commercialpurposes if a kalyana mandapam is allowed to be constructed. Thatapart, prima facie, the petitioner has not made out any case byestablishing that there is infringement of right guaranteed to himunder Article 300A of the Constitution of India and also there isviolation of the provisions of the Tamil Nadu Town and CountryPlanning Act, 1971, to sustain the writ petition after a lapse ofconsiderable period of time. https://hcservices.ecourts.gov.in/hcservices/ In view of the above findings, I am of the considered viewthat the writ petition deserves no consideration and is accordinglydismissed without any order as to costs. Consequently, connectedM.Ps. are closed.CadSd/Asst. Registrar/true copy/Sub Asst.RegistrarTo1The Director of Town & Country PlanningAnna SalaiChennai - 600 0022The Block Development Officer (Village Panchayat)and Commissioner / Local Planning AuthorityTiruvarur Panchayat UnionTiruvarurTiruvarur District3The Special OfficerTiruvarur Cooperative Housing SocietySouth Main StreetTiruvarur•One cc to Mr. K. Sridhar, Advocate SR 75321One c cto Mr. a. Jenaseana, Advocate sR 75491ASM (co)sg 05/01/08order inW.P.No.22115 of 200619.12.2007