THE HONOURABLE MR v. Chennai Metropolitan Development Authority by Member Secretary

IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 03.04.2007CORAM:THE HONOURABLE MR.JUSTICE A. KULASEKARANWP.No.49775/2006MP.No.1/2006 & 1/2007R.ShenrajPetitionervs.1.Chennai Metropolitan Development Authority by Member Secretary, Chennai-82.Corporation of Madras by its Commissioner Chennai-33.The Assistant Engineer Corporation of Chennai Division 5, Chennai-944.The Divisional EngineerCorporation of Chennai Division 5, Chennai-94RespondentsPrayer:- This Writ Petition is filed under Art.226 of the Constitutionof India to issue a Writ of Certiorarified Mandamus to call for therecords of the 2nd Respondent in his order dated 14.12.2006 and to quashthe same and to consequently to direct the 2nd Respondent to permit thePetitioner Association to maintain the Open Space Reservation Area aspark/play field for the exclusive use of the Chitra Avenue Flat owners.For Petitioner:Mr.Gladys DanielFor Respondents:Mr.J.Ravindran, R1Mr.V.Bharathidasan-RR2to4ORDER 1.The case of the Petitioner is that the Petitioner is the Chitra Flatsand Apartments Owners Association, bearing Registration No.205/2002;that there are around 350 flats in the Avenue and around 1500 inmatesare living there, which is exclusive of the expected occupants in theunsold flats and some of the flats were purchased as early as 1999;that at the time of occupation, the members of the PetitionerAssociation found that the particular area adjacent to theNungampakkam Railway Station was kept vacant, which resulted in antisocial elements trespassing into the said land and causing publicnuisance; that the Petitioner association decided to prevent suchtrespass and nuisance and made enquiries for ascertaining the status https://hcservices.ecourts.gov.in/hcservices/ of the land; that thereafter they came to known that the said land wasearmarked as Open Space Reservation Land (OSR), which has been giftedto the 2nd Respondent by virtue of the registered gift deed dated26.6.2000 registered as Doc.No.2206/2000 with the Sub Registrar,Kodambakkam; that the gift was made as required under Clause 19(B)ivof the Development Control Rules of Chennai Metropolitan DevelopmentAuthority; that the Petitioner made several oral and writtenrepresentations to the Respondents, requesting for proper utilisationand maintenance of the said OSR Land, but they failed to response andhence, they mobilised funds among themselves and developed a smallpark and garden for protecting the residents from the ill effects ofurbanisation; that the said park and garden have been under theexclusive maintenance of the flat owners for the past several years;that while things are as such, the 2nd Respondent attempted toobstruct the residents from using the said OSR land; that on 18.4.2002some of the officials of the 2nd Respondent started putting upobstruction with an ulterior motive of converting the saidrecreational area for the betterment of some influential thirdparties; that the Petitioner has filed WP.No.14264/2002 to issue aWrit of Mandamus to direct the 2nd Respondent therein to pass orderson the representation of the Petitioner dated 10.8.2001 to earmark thesaid land for reserved area and consequently to maintain the same;that in WPMP.NO.19229/2002 in WP.No.14264/2002, interim injunction wasgranted as sought by the Petitioner by order dated 25.4.2002, whichwas made absolute on 29.8.2003 and the said Writ Petition wasultimately disposed of on 18.9.206, directing the RespondentCorporation to decide as to whether the open space should be given forthe purpose of usage by the flat owners in question; that thereafter,the Respondent Corporation has passed the impugned order dated14.12.2006, directing the Petitioner association to remove all theplay equipment and hand over possession of the said OSR Land to theCorporation and hence, this Writ Petition has been filed.2.The case of the Respondents is that admittedly the land in questionwas donated to the Respondent Corporation and hence, they have everyright over the said land and possession was not handed over by thePetitioner and hence, they could not develop the park and garden andfor that purpose, the Respondents rightly passed the impugned order,directing the Petitioner Association to remove the obstructions andhand over possession of the same.3.The learned counsel for the Petitioner has submitted that the impugnedorder passed by the Respondent is arbitrary, besides that it is a nonspeaking order; that the Respondents did not conduct proper enquiry bygiving opportunity to the Petitioner Association and the Petitioner isnot causing any obstruction as alleged by the Respondent Corporation;that GO.Ms.No.165 dated 10.9.1997 issued by the Housing and UrbanDevelopment Department permitted the residents association to maintainreserved areas as parks/gardens and hence, the Petitioner by spendinghuge amount developed the park and garden and hence, it is not properon the part of the Respondent Corporation to direct the Petitioner toremove the playing equipments and hand over possession of the land indispute and hence, the Petitioner is entitled to maintain the park andgarden, in which the Respondent Corporation has no right at all and https://hcservices.ecourts.gov.in/hcservices/ prayed for quashing of the impugned order.4.The learned standing counsel for the 2nd Respondent has submitted thatthe land in dispute is to an extent of 1270 sq.ft. in Paimash No.297and 650 in TS.No.189 part in Block No.16, Pulliyur Village, Egmore-Nungambakkam Taluk, Chennai District; that the said land wasoriginally belonged to the Loyola College and the same was gifted tothe Chennai Corporation for Open Space Reservation by way of gift deeddated 26.6.2000 by their Power of Attorney G.Govindarajan; that thesaid land was gifted for utilising the same and maintain for thebenefit of the public by the Corporation; that at that time, the saidG.Govindarajan has given an undertaking to the Corporation that hewould put up a compound wall around the land within 6 months from thedate of handing over the possession, but he failed to comply with thesaid undertaking and on the other hand, he encroached the land andunauthorisedly erected children play apparatus; that subsequently oneG.Manjula, w/o. G.Govindarajan filed the said Writ Petition inWP.No.14264/2002 and obtained interim injunction restraining theRespondent Corporation from entering into the OSR Area and not todisturb their enjoyment of the land in dispute; that subsequently thesaid Writ Petition was disposed of by order dated 18.9.2006, directingthe Respondent Corporation to take decision one way or the other; thatafter considering the objections of the Petitioner, it was decided bythe Corporation to take over the land for further development of theland as a park and play ground for the use of the general publicincluding the residents of the Petitioner Association; that OSR landis meant for the use of General Public and it cannot be allotted tothe Petitioner exclusively and final order was passed on 14.12.2006and the same was also communicated to the Petitioner; that by virtueof the interim order granted by this court, the resident occupied theOSR land using the part of the land as children play space withplaying apparatus and the remaining area as a parking area for twowheelers and four wheelers of the resident, which is not permissibleand hence impugned order has rightly been passed by the RespondentCorporation and prayed for dismissal of this Writ Petition.5.This court carefully considered the arguments of the learned counselon either side and also perused the material records placed. 6.It is not in dispute that the land in question, which is the subjectmatter of this Writ Petition, was donated in favour of the RespondentCorporation for OSR. It is seen from the records that the RespondentCorporation has not immediately made any efforts to developpark/garden. However, it is alleged by the Corporation that saidG.Govindarajan, who was the power of attorney of Loyola College,promised to put up a compound wall within 6 months from the date ofexecution of the said gift deed, but he failed to do so, as a resultof which, the Respondent Corporation is unable to commence the workand the said reason assigned by the Respondent Corporation is notconvincing, however which cannot be ignored because the delay causedby the donor in constructing the compound wall definitely could havemade the Corporation to postpone the planning and implementation,which is normal nowadays. Having waited for a long time, as there wasno action taken by the Respondent Corporation, the PetitionerAssociation has bona fide developed the park and maintaining it as on https://hcservices.ecourts.gov.in/hcservices/ date. However, such a development and maintaining of the park willnot confer any right to the Petitioner, since the said land wasadmittedly gifted to the Respondent Corporation for OSR. Now, thelearned standing counsel for the Respondent Corporation, oninstructions, has submitted that the Respondent Corporation is takingsteps to develop the land for park/garden within a short period. 7.Considering the said facts that the land in dispute was gifted to theRespondent Corporation and that the Respondent Corporation has nowtaken a decision to develop the park within a short period and thesame is reflected in the impugned order, this court is of theconsidered view that the prayer as sought for in this Writ Petitioncannot be granted.8.In the result, this Writ Petition is dismissed. No costs.Consequently, the connected MPs are closed. However, it is made clearthat along with the other general public, the members of thePetitioner Association are also entitled to use the park and thegarden.9.After dictating of this order, the learned counsel for the Petitionerhas prayed this court to direct the Respondent Corporation not toremove the play apparatus from the land in dispute, for which, thelearned standing counsel for the Respondent Corporation has submittedthat if the said play apparatus are required for the park, the samewill be used and that in case there is any hindrance for developmentactivities, the same has to be removed and the said submissions ofthe learned standing counsel for the Respondent Corporation isrecorded. SrcmSd/Asst. Registrar/true copy/Sub Asst.RegistrarTo:1.Chennai Metropolitan Development Authority by Member Secretary, Chennai-82.Corporation of Madras by its Commissioner Chennai-33.The Assistant Engineer Corporation of Chennai Division 5, Chennai-94 https://hcservices.ecourts.gov.in/hcservices/

4.The Divisional EngineerCorporation of Chennai Division 5, Chennai-94+ One cc to Mr. Gladys Daniel Advocate sR 20971+ One cc to Mr. V. Bharathidasan Advocate sR 21313PPV (co)]sg 20/4/07WP.No.49775/2006