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Judgment
S. Jagadeesan, J.
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 Nagar. The petitioner-Society has executed a gift deed in
favour of the Velacherry Town Panchayat Union in respect of the public roads specified. 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 SP. No. 582 part; 584, 585,
a playground area of 10800 Sq.Ft. lying On 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.
The respondents have filed a counter in the Writ Petition as well as in the Contempt Application, from which the facts can be gathered. The case
of the respondents is that the building has already been constructed and the Corporation Office has been located in the same building. Out of
10800 Sq.Ft., the Corporation has put up the construction in 1250 Sq.ft. alone for locating the Divisional Office in the southern corner of the suit
property. The construction is only for the benefit of the residents of the area. Otherwise, the residents have to cover a distance of 8 Kms to reach
the East Velacherry Divisional Office for their redressal. Since the Divisional Office has been located for the convenience of the entire residents of
the whole area, it cannot be said that the respondents have acted for any personal benefit and such an action is unauthorised or illegal. The
Development Control Rules permit the places earmarked for particular use to be used for other public uses and as such, there is no contravention
in the constructions nude by the respondents and as such the Writ Petition is liable to be dismissed.
I have carefully considered the contentions of the counsel for either side. The Writ Petition had been filed on 15.10.1998 admittedly after the
completion of the entire construction. When, admittedly, the petitioner has filed the suit O.S. No. 4108 of 1998 on the file of XI Assistant Judge,
City Civil Court, Madras for injunction restraining the respondents from putting up any construction in the disputed place, in my opinion, it is not
open to the petitioner to simultaneously approach this Court for the removal of the building on the ground that in spite of the pendency of the sand
suit, the respondents had completed the construction. When the petitioner has filed I.A. No. 9601 of 1996 in the said suit seeking for an interim
injunction, considering the arrangements made by the respondents either to start the construction or in the development of the construction, they
ought to have insisted for an early disposal of the said application. There is no explanation on the part of the petitioner as to why they have never
made any attempt before the City Civil Court, Madras for the early disposal of the said application or for their failure to insist for an interim order
forthwith complaining about the commencement of the construction by the respondents. Since the said suit is pending before the City Civil Court, it
is always open to the petitioner to seek for the amendment of the plaint for appropriate relief including the demolition of the property, if the
construction made by the respondents is illegal.
It is not open to the petitioner having failed before the Civil Court in their attempt to get any interim order, to approach this Court by way of
alternate remedy. It has been held in the case of Prahlad Pandey and Others Vs. State of Bihar and Others, as follows:
From the memo of the Writ Petition, it is borne out that attempt was made to secure injunction even from the Appellate Court and also to expedite
the hearing of the Civil Suit and on failure in their attempt, an application was moved on 16.1.1998 for the withdrawal of the suit and the same was
allowed and after the withdrawal of the suit, the petitioners have resorted to this discretionary remedy under Article 226 of the Constitution and
that is how the petitioners for the second time have approached this court in the Writ Jurisdiction.
The scope of Article 226 of the Constitution is well settled. Article 226 of the Constitution of India does not confer any vested guaranteed right in
favour of the litigant to move the High Court, therefore, the petition under Article 226 of the Constitution cannot be filed as of right. Though the
prerogative powers vested in the High Court under Article 226 of the Constitution are plenary in nature but it does not lay down any specific
direction that when or at whose instances or under what circumstances the High Court will exercise those powers: but all the same it affords an
extraordinary jurisdiction for ventilating amongst others, the grievances arising out of the infraction of law of the land with a view to seek redress
and thus for every wrong for its redressal remedy and forum are provided and normally only after exhausting all remedies available in law, as a last
resort remedy under Article 226 of the Constitution can be invoked. Therefore, no doubt an aggrieved person can approach the High Court
invoking Article 226 of the Constitution for seeking appropriate relief and it is open to the Court in the exercise of its discretion to grant relief
applying the above parameter and once on the basis of the above criteria the petitioners are denied relief that ''disputed question of fact'' is involved
and the same cannot be gone into and adjudicated upon in writ jurisdiction. It does not remain open for the litigant to approach the Writ Court
repeatedly and, in our view, repeatedly approaching the Writ Court indeed amounts to abusing the process of the Court.
Since I am giving the liberty to the petitioner to seek appropriate relief''s before the Civil Court, I am not inclined to make any observation with
regard to the stand taken by the respondents in respect of the legality of the construction. The rights of the petitioner can be decided in the Civil
suit.
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 lay-out 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 lay-out 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 I 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 lay-out 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 to be a legal owner of the land in dispute and be
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 emitted 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.
Even though Rule 14 of the Development Control Rules framed under the Tamil Nadu Town and Country Planning Act, 1971 permits the
building or premises, such building or premises can be only for the purposes mentioned in sub-clauses (1) and (2) of Rule 14(a) of the said Rules.
Sub- clause (1) of the Rule 14(a) of the said Rules contemplates the building or premises can be for the use of all public or semi pubic recreational
uses and open spaces, parks and play grounds, zoological or botanical gardens or nurseries, waterfront developments,, museums, and memorials.
Even here, Rule 14(a) of the said Rules empowers the authorities to put up such building or premises in the open space and the recreational zone,
which means the building or premises put up by the authorities must be of some accessory use for which the place has been earmarked under the
lay out. The authorities cannot construct ah office building or any other building for their office use and say, the building is only for the public use
and not for the personal use. The public use or semi public use means the building should always be available for the general public or semi public
for their use and occupation. When such restrictions are in the said Rules, and since the same is not carried out, the Government is directed to issue
necessary instructions to all the local bodies not to use the open space earmarked for the particular use to any other private use of the local bodies,
that too causing detriment to the use of the public for which it is specifically earmarked. At least, a portion of the hug space can be utilised for other
purpose, but not the places earmarked for purposes like playground, etc.
In the counter affidavit in this cue, the respondents have stated that only 1250 Sq.Ft. has been constructed for the use of the Divisional Office
out of 10,800 Sq.Ft. earmarked for the playground. The respondents are directed not to put up any further construction in the place earmarked for
the playground and also must take care that the remaining place barring 1250 Sq.Ft. is utilised for the playground or for any other purpose for
which the same is earmarked.
With the above observations, the writ petition is dismissed. Consequently, the connected W.M.P, also dismissed.
Contempt Application No. 177 of 1999: Petitioner has filed this Contempt Application to punish the respondents for the disobedience of the
orders of this Court dated 2.12.1998 in W.M.P. No. 24643 of 1998 in W.P. No. 16312 of 1998. By order dated 2.12.1998, this Court granted
an order of interim injunction restraining the respondents from using the building in dispute for any purpose and the building should be kept vacant.
The respondents have filed a counter that before ever the said order was passed by this Court, the building was occupied by the respondents
for their office purpose, since the construction itself was made for locating the Divisional Office of the Corporation. Even though much arguments
were advanced on both sides, no evidence was let in by the petitioner herein to show that any contravention of the order of this Court has been
made and the respondents have, occupied the bulletins and thereby committed contempt of Court When specific allegations have been made,
some evidence is necessary to decide the issues and it is for the parties to let in such evidence. Without that, it may not be possible to decide the
case on the averments contained in affidavit and counter affidavit. In my view, on the above stated facts, the petitioner has not made, out any case
for contempt. Accordingly, the Contempt Application is dismissed.