Madras High Court
S.P.Thiyagarajan vs The Commissioner on 10 March, 2026
Author: S.M.Subramaniam
Bench: S.M.Subramaniam
2026:MHC:1083
W.A.No.2551 of 2023
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IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 10.03.2026
CORAM:
THE HONOURABLE MR.JUSTICE S.M.SUBRAMANIAM
AND
THE HONOURABLE MR.JUSTICE K.SURENDER
W.A.No.2551 of 2023
S.P.Thiyagarajan ...Appellant
Vs.
1.The Commissioner,
Coimbatore City Municipal Corporation,
Coimbatore – 641 001.
2.The Member Secretary,
Local Planning Authority,
Sivananda Colony,
Coimbatore – 641 012.
3.The District Educational Officer,
Coimbatore – 641 001.
4.The Director of Town and Country Planning,
807, Anna Salai,
Chennai – 600 002.
5.The Chairman,
Empowered Committee,
The Secretary to Government,
Housing and Urban Development Department,
Secretariat, Chennai – 600 009.
6.Sachithananda Nageswaran
7.The Executive Officer,
Kuniamuthur Panchayat,
Coimbatore District. ...Respondents
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PRAYER : The Writ Appeal filed under Clause 15 of the Letters Patent praying
to set aside the order dated 12.04.2022 made in W.P.No.43824 of 2016
passed by this Court by allowing this Writ Appeal.
For Appellant : Mr.N.Manoharan
For Respondents : Mr.N.Umapathi for R1
Mr.P.Kumaresan,
Addl. Advocate General
assisted by Dr.S.Suriya,
Addl. Govt. Pleader for R2 to R5
Mr.T.R.Rajagopalan,
Senior Counsel
for Mr.V.Anantha Natarajan for R6
Dr.S.Suriya,
Addl. Govt. Pleader for R7
***********
JUDGMENT
(Judgment of the Court was delivered by S.M.SUBRAMANIAM, J.)
Under assail is the writ order dated 12.04.2022 passed in W.P.No.43824
of 2016.
2. The writ appellant has instituted the writ proceedings challenging the
Resolution passed by the Empowered Committee in 33 rd Empowered
Committee meeting held on 30.08.2016 in Agenda No.26 and to direct the
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Commissioner, Coimbatore City Municipal Corporation to resume the land
earmarked for park and playground in Nethaji Nagar Layout from the 6 th
respondent as per the eviction notice dated 10.03.1015.
3. The facts in brief would show that the 6th respondent
Mr.Sachithananda Nageswaran purchased the subject land which is
earmarked for park and playground in the year 1993 from the developer of an
approved layout. It is not in dispute that as per the approved layout, the
subject land has been earmarked for developing park and play ground by
Coimbatore City Municipal Corporation. The said purchase of land was made
for developing Home for aged people. However, the 6 th respondent
constructed a school and running the same for the past about 16 years. The
appellant who is residing in the nearby location made a complaint stating that
the park and playground area earmarked under the approved layout has been
sold illegally and the 6th respondent has constructed a school building contrary
to the layout approval as well as the provision of the Town and Country
Planning Act. The complaint given by the appellant was considered by the
District Collector and the certificate dated 04.04.2013 issued by the District
Collector would read as follows:-
CERTIFICATE
The Siddar Gnana Padasal functioning in Coimbatore
South Circle, Sundakkamuthur Vilalge, Siddar Gnana
Peedam, Vivakudil, Kovaipudur has purchased the below
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mentioned Punjai land situated at Sundakkamuthur Village,
Kovaipudur South circle, Coimbatore District.
Serial Ka.Sa.No Extent in Sub Registrar of Madukkarai /
Number . Square Document number
feet
1. 117/2 2400 663/1989 date: 25.04.1989
2. 117/2 1000 1590/1989 date: 18.11.1989
3. 117/2 5502 ¾ 459/1993 date: 04.03.1993
4. 117/2 5515 ¼ 1343/1993 date: 27.07.1994
14418
Through the Coimbatore, Kuniyamuthur town
Panchayat File No.19813/88—Ma.Va.U.E.No.155/88 eh land
purchased has been approved for development as a Layout.
Among this 14418 Square feet (the 14418 square feet
mentioned in the above mentioned Sl,No.1 to 4) this land has
been allotted for Park and Playground.
4. Further representations submitted by the 6 th respondent before the
Member Secretary, Commissioner Local Planning Authority was considered
and the Member Secretary has communicated a reply dated 02.08.2013,
wherein he has reiterated that the proposed place has been earmarked for
park and playground with Layout plan KA/T CP.No.155/88. It is not
permissible to construct a school in the place reserved for park and
playground. The said intimation resulted in approaching the Assistant
Commissioner, South Zone, Coimbatore Corporation by the 6 th respondent
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who in turn in his reply dated 28.01.2014 again reiterated that the subject
school building built, operational and located at Coimbatore Municipality South
Zone Kovaipudur, Sundakkamudur Village Survey No.117/2, 117 approved is
meant for park and play area.
5. The Member Secretary, Coimbatore Town Planning Authority
addressed a letter to the Commissioner, Town Planning Department on
22.12.2014, wherein, he made a finding that the physical inspection of the
subject land has been made. The subject land earmarked as park and
playground for the benefit of the public has been purchased and school
building has been constructed and was functioning. He has reiterated that the
application submitted regarding conversion of the park and playground
earmarked for public usage is impermissible and consequential enforcement
actions are initiated by invoking the provisions under Section 56 and 57 of the
Town and Country Planning Act, 1971. Notice in Form I was issued on
03.03.2015. Pertinently the 6 th respondent has submitted an undertaking as
follows:-
Undertaking
I, Sarvothama Sachidanandha Natheswaran, Managing
Trustee, Sri Siddhar Gnana Peedam Trust, Nethaji Nagar,
Kovaipudur, Coimbatore – 641 042 hereby agree to shift our
existing school premises as per your letter
No.4660/2014/M.H.4(S) dated – 03.2015 within an estimated
period of two years subject to extensions if any. We are also
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building a new school in Sundakamuthur Vilalge,
SF.No.:43/2D1 in an extent of 408.32 sq. mts.
6. After filing the undertaking before the competent Authority of
Coimbatore Corporation, the 6th respondent approached the Empowered
Committee constituted by the Government. The Empowered Committee in its
33rd meeting held on 30.08.2016 passed a Resolution as follows:-
Agenda Subject Decision taken in the
No. meeting
26. Layout – Relaxation of The Committee discussed
Park & Play Space and the subject in detail and
permit to use for School decided to allow the
Building – In Approved request of the appellant
Layout L.P/DTCP for dereservation of the
No.155/88, Coimbatore land reserved for park an
Local Planning Area- dplayground for school
Coimbatore Corporation – purpose in approved
Sundakkamuthur Village – layout in LP/DTCP
S.F.No.117/2B – Applicant No.155/88 and to
Constructed a School compensate the same by
Building – regarding. handing over the plot
(File No.4863/2015/LA2) No.45 for park purpose
Managing Trust, Sri Sitthar and to pay guideline
Gnanapeedam Trust value to the Government
for the balance land of
the reserved park used
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the layout promoter sold
him park land to establish
a school and the school is
run by a trust serving the
educational needs of the
poor.
7. The said Resolution came to be challenged in the Writ Petition.
8. Mr.N.Manoharan, learned counsel appearing for the appellant would
mainly contend that the Resolution passed by the Empowered Committee per
se is untenable in view of the fact that one Tr.Dharmendra Pratap Yadav,
I.A.S., acted in three capacities as Secretary to Government, Housing and
Urban Development Department, Member Secretary, Chennai Metropolitan
Development Authority and Commissioner of Town and Country Planning.
One IAS Officer acting in three capacities have taken a decision by sitting in
Empowered Committee meeting, which would defeat the very purpose of
constitution of the Committee.
9. Regulation 10 of the Development Control Regulations for
Coimbatore Local Planning Area issued in G.O.Ms.No.130, Housing and
Urban Development Department, dated 14.06.2010, in which, more
specifically Clause 10 speaks about the Empowered Committee as follows:-
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10. Empowered Committee:– Specific cases of
demonstrable hardship shall be referred to Empowered
Committee under the Chairmanship of Secretary, Housing and
Urban Development with Secretary, Municipal Administration
and Water Supply, Member-Secretary, Chennai Metropolitan
Development Authority as members and Director of Town and
Country Planning as Convener of this committee. This
Empowered Committee may relax any of the planning
parameters prescribed in these regulations on due
consideration to merit on case to case basis. The Empowered
Committee will also be the appellate Authority as per section
79 of the Act. The Government may give directions on
individual cases to be referred to Empowered Committee on
specific issues.
10. Therefore, the decision taken by the Empowered Committee is
running counter to the Regulations and this ground was considered by the writ
Court and made a finding that the decision is farcical. Despite the finding, the
Writ Court has dismissed the Writ Petition.
11. Mr.T.R.Rajagopalan, learned Senior Counsel appearing on behalf of
the 6th respondent would submit that the subject land was purchased in the
year 1993 by the 6th respondent for the purpose of establishing Home for aged
people. Subsequently a decision was taken to construct a school and the
school constructed is functional for the past about 16 years. The Empowered
Committee has taken a decision and granted exemption / relaxation and the
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Writ Court considered the fact that the school is functional for several years
and the complaint made by the appellant after a lapse of many years need not
be considered. That apart, the 6 th respondent has paid a consideration as
decided by the Empowered Committee and alternate portion of land was also
handed over to the Corporation in lieu of the land in possession of the 6 th
respondent. Since the conditions stipulated by the Empowered Committee
has been complied with, the writ Court considered the issues and rejected the
Writ Petition.
12. This Court has considered the arguments as advanced between the
parties to the lis on hand.
13. The first issue to be considered is, whether conversion of public
purpose area viz., park, playground, OSR land for any other purpose other
than the purpose for which it has been approved in the approved layout is
permissible or not. The issue is no more res integra. The Hon’ble Supreme
Court in the case of Association of Vasanth Apartments’ Owners v. V. Gopinath
& Others1 elaborately considered the issues and held that conversion is
impermissible. The Hon’ble Supreme Court reiterated the principles that even
in case no gift deed has been executed in favour of the local Authority, still the
common purpose area vest with the local Authority and non-execution of gift
1
2023 INSC 123
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deed is not fatal, nor developer can claim any right over common purpose
area merely on the ground that no gift deed has been executed in favour of
the local Authority.
14. In the present case, it is not in dispute that layout is approved under
the provisions of the Town and Country Planning Act. Further it is not in
dispute that the subject land has been earmarked for developing public park/
playground. Therefore, very sale of park area and playground is in violation of
the conditions stipulated in the approved layout, in view of the provisions
under the Town and Country planning Act. The apex Court in following
paragraphs reiterated the said principles:-
153. The matter may be viewed in the following manner. In the
facts in Pandit Chetram Vashishta (supra), it was held that the
position of the developer, would be that of a trustee. It was so held in
the absence of a 210 statutory mandate. Now, in this case, there is a
statutory mandate to execute a gift deed. The question would arise
as to what would be the nature of the rights of the donee, viz., the
local authority. Would the donee become an absolute owner? Can
the local authority transfer the land? Can the local authority build on
the OSR area? The answer to all these questions is only in the
negative. Unlike the donee, in the case of a gift, the local authority
cannot in anyway acquire the right as the absolute owner. Just as in
the case of Pandit Chetram Vashishta (supra), where the developer
would be a trustee, we would think that the Rule, if is to be upheld, in
the conspectus of the law and bearing in mind the object, the transfer
by way of a gift to the donee will be only for the purpose of ensuring
that the object of the law is attained, i.e., the property is maintained
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as OSR. The local authority, under the gift deed, would be a mere
trustee. As trustee, it will be the obligation of the local authority to
ensure that all such lands, set apart under the impugned Rules/
Regulations, are effectively maintained as such. In 211 this regard, in
the Open Space Act, 1906, a U.K. Law, Section 3 reads as follows: “3
Transfer to local authority of spaces held by trustees for purposes of
public recreation. (1) Where any land is held by trustees (not being
trustees elected or appointed under any local or private Act of
Parliament) upon trust for the purposes of public recreation, the
trustees may, in pursuance of a special resolution, transfer the land
to any local authority by a free gift absolutely or for a limited term,
and, if the local authority accept the gift, they shall hold the land on
the trusts and subject to the conditions on and subject to which the
trustees held the same, or on such other trusts and subject to such
other conditions (so that the land be appropriated to the purposes of
public recreation) as may be agreed on between the trustees and the
local authority with the approval of the Charity Commission. (2)
Subject to the obligation of the land so transferred being used for the
purposes of public recreation, the local authority may hold the land as
and for the purposes of an open space under this Act.”
159. In case there is no requirement to execute a gift of OSR
area in terms of Pandit Chetram Vashishta 220 (supra), the project
proponent/owner would remain in the position of a trustee. As a
trustee in law is the legal owner, and therefore this being the position
in law, he may not be disabled from transferring the property in any
manner. However, as he is under obligation as a trustee to maintain
the property as OSR, he cannot defeat the obligation by transferring
the same and it can lead to abuse. No doubt, he would be prohibited
from raising any construction over the OSR area. One of the bundle
of rights of an owner, however, which would survive after the owner
steps into the shoes of a trustee, could be said to be the power to
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exclude ‘others’ from the OSR area. The attribute of ownership of
property consisting of the power to exclude others may continue with
the project proponent in the absence of a gift. Now, interestingly, this
again would depend upon the interpretation of the words ‘communal
and recreational purpose’. This is for the reason that if the OSR area
can be accessed by members of the general public as contended by
the respondents, then, the project proponent cannot possibly have
the right of an owner to exclude them. Equally, even with 221 the
requirement to maintain the OSR area in the absence of the demand
for a gift, it could be said that the sole project of proponent could
have the right to remain in possession. Another dimension may be
noticed. What would happen if the OSR area is acquired in the
exercise of the power of eminent domain for the public purpose?
Who would be entitled to the compensation, if a gift is made in terms
of the impugned Rule/Regulation? We would think that since the
interpretation we are placing is that the gift under the Rule/Regulation
is intended only to ensure due compliance with the requirement of
the OSR area being effected and to prevent misuse by the owner, as
between the original owner and the local authority, it would be the
original owner, who may be entitled to the compensation.
166. Having made these observations, we pass on to
consider further aspects. In the case of Vasanth Apartments,
i.e., Civil Appeal Nos. 1890-1891 of 2010, the developer
undoubtedly executed a gift deed. A contention is taken on
behalf of the respondents including Shri Jayant MuthRaj that
the donor has gifted the land for roads and parks from the
perusal of the gift deed. It would appear that the donor has
indeed gifted the land in question and provided that the donee
may peacefully and quietly enjoy the said land ‘of roads/parks’
free from all encumbrances. At this 231 juncture, we bear in
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mind the actual terms of the gift deed executed in the case of
Association of Vasanth Apartments, which we have adverted to
in paragraph-47 of this Judgment.
167. The Division Bench has considered the report of the
Advocate Commissioner also to find that there existed a kachha
pathway and that is a road which is being used by thousands in
terms of the gift deed which came into effect. It is their
contention that even if it is found by this Court that in terms of
the OSR requirement of 10 percent of the land, it can only be
used as open space for communal and recreational purpose
and not for a road, this Court may not interfere.
168. Firstly, we must consider the ambit of the words
communal and recreational purpose and find whether it could
take in a public road for being used by members of the public
generally. Equally, we must consider whether the word
communal is capable of extending the benefit of the open space
requirement to the members of the general public or whether it
must be confined to the beneficiaries of the group development.
In other 232 words, if the word communal is interpreted as the
community of the beneficiaries of the group development, then
it must be understood as meaning that members of the general
public cannot be permitted to partake of the benefits flowing
from the open space reservation. For instance, if adjoining the
site and as indicated in the explanation in a shape and location
determined by the CMDA, a park is constructed. By use of the
word communal and interpreting it to mean a community which
is larger than the mere beneficiaries of the group development
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as such, then the benefit of the open space may become
available to the general public in the nearby area. This would
have the advantage of facilitating the members of the public
avoiding travelling to the areas where there is recreation or
open space, as for instance, under the zoning requirements.
Undoubtedly, the absence of any construction which is
indispensable to make it an open space area and which is
insisted upon also will provide a large chunk of space for all the
people in the area. Making available the facilities on the basis
that when development is permitted, it brings in its train 233
certain responsibilities for the project proponents which can be
appreciated as legitimate State interests, is one way of
approaching the issue. It must be understood in all these cases
that setting apart of 10 percent of the area is actually as such
not objected to. This means all parties are agreed that the law
providing for setting apart of 10 percent of the total area
excluding roads in the case of group development in excess of
10,000 square metres is legitimate and valid, unless we find
favour with the arguments that it is otherwise constitutionally
infirm. We have already found that the provision does not offend
Article 14 on the ground that it represents a species of class
legislation. We are unable to also find that the provision is
manifestly arbitrary. If in other words, there is no other basis to
find the impugned rule vulnerable, we can safely proceed to
hold that the requirement of OSR is not unjustified. We have
noticed the stand of the two appellants and the writ petitioners
also in this regard. We find that it is their stand that they are
prepared to maintain the 10 percent area as OSR. What is
objected is to the 234 execution of the gift deed and allowing
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the property rights to change hands. This is apart from the
objection to the chosen site being made accessible to the
general public.
169. We have noticed that in Pandit Chetram Vashishta
(supra), this Court has held that in the absence of valid
provision under which the gift in the said case could be
supported, the mere resolution was not sufficient. The position
still was found to be that the original owner would continue to be
a trustee. He cannot transfer or change the nature of the
property. In fact, in the decision reported in Virender Gaur
(supra), this Court discountenanced conversion of what was an
OSR area into land on which construction though for what was
projected as a laudable object was carried out. We are of the
view that bearing in mind the laudable object the law relating to
town planning which has been the very basis for our reasoning
otherwise, we must clarify that what the Rule and the
Regulation mandatorily stipulated was the dedication and
maintenance of 10 percent of the area for communal and
recreation purposes area only. There is inviolable duty 235 on
the part of all including the local body and the CMDA to ensure
that an area which is set apart or purported to be set apart in
terms of the OSR requirement under the Rule/Regulation in
question is used only for communal and recreational purpose.
We notice in, this regard, the complaint of Ms. V. Mohana,
learned Senior Counsel, as indeed the other counsel that only
lip service is being paid to the projected sublime object of
maintaining OSR. This cannot be permitted.
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170. Unrelentingly persevering is the aspect relating to
the contours of the word communal in the setting of the
Rules/regulations and Act. Rules do shed some light in Rule 19
(b)(II)(vi). In regard to plots having a size of 3,000 square
metres to 10,000 square metres, the law giver has provided that
it shall not be necessary to provide access to the public. When
it comes to the impugned Rule, viz., Rule 19 (b)(II)(vi) providing
for plot size in excess of 10,000 square metres, it is apparent
that the access of the members of the general public to the
OSR area is to be permitted. This result is inevitable having
regard to 236 the fact that unlike the immediate predecessors,
viz., plot size having 3,000 to 10,000 square metres wherein it
has been indicated that public access shall not be insisted upon
such a relaxation is conspicuous by its absence. The wisdom
and the value judgement, which underlies permitting or
contemplating public access to the OSR area, can be
understood only in terms of the difference in the size. Once
wisdom and a value judgment are beyond the pale of judicial
review and scrutiny, and further, it is found that the project
developer and also the beneficiaries of the group development
are duty-bound for maintaining an OSR area, then the matter
goes to the legitimacy of the public or State interest. The
consequences of executing the gift deed and the underlying
purpose have been adverted to by us already. In fact, apart
from it being a legitimate public purpose, even the rough
proportionality concept in Nollan (supra) would appear to be
satisfied.
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177. In this regard we find reassurance in the view taken
by the courts in the United States even in the presence of the
taking clause under the 5th Amendment to the U.S.
Constitution. In an Article titled “Techniques for Preserving
Open Spaces” published in 75 Harv. L. Rev. 1622, we find the
following: “Required Dedication and Reservation. — A
municipality can require the developer of a new subdivision to
provide such facilities as roads, streets, sewers, and
playgrounds as a condition to plat approval. In the leading case
of Ayres v. City Council a requirement that the subdivider
dedicate land for road and street purposes and leave
undeveloped an accompanying area for trees and shrubbery
was approved on the theory that since the new subdivision
created the need for and would specially benefit from the
improvements, the developer and ultimate purchasers rather
than the entire 241 community should bear the cost of providing
them. In a case involving required reservation of land for a
public park the argument that this would be an unconstitutional
taking of land was rejected on the theory that the subdivider
would be compensated by the share of the benefits to the whole
community which accrued to his particular development. The
Pennsylvania Supreme Court has taken a contrary view,
however. And where the need for a particular improvement is a
general one, not specifically attributable to the subdivider’s
activity, the entire municipality must bear the cost.” We would
therefore come to the conclusion that the word ‘communal’ must
be understood as where the layout exceeds 10000 sq.meters
entitling members of the general public also to avail the benefit
of the OSR area. Once, the word ‘communal’ is so understood it
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further fortifies us in our conclusion that there would be no
infraction of Article 300A or Article 14 as understanding the
execution of the gift deed as obligating the donee only to act as
a trustee to ensure the fulfilment of the sublime goal of the law
and since the owner/developer would not have a right to
exclude others or to claim exclusive right to possession which
would be incongruous to recognising the right of the members
of the general public to access to the OSR 242 area. This
discussion furnishes our rationale to uphold the Rule /
Regulation and to hold that it can withstand the challenge based
on Article 300A on the basis that properly appreciated the “so
called compelled gift” would be valid. Even proceeding on the
basis that a challenge to Rule 19(b) would imply a challenge to
the Explanation as well, on the reasoning which has appealed
to us, namely, about the nature of the right under the Gift Deed
as also finding that the word ‘communal’ is intended to reach
the benefit of the OSR area to the members of the public as
well, there would be no merit in the contention.
15. On the similar line the Division Bench of this Court also decided the
issues in the case of S.Ponnusamy Vs. V.Chandrasekar and others 2.
Paragraph Nos. 30 to 35 are extracted hereunder:
30. The Apex Court as well as Division Bench of this
Court had occasion to consider the variation, change or
modification in the Development plan / Layout plan and held
as follows:
2
2024 (2) LW 793.
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31. In Bangalore Medical Trust Vs. B.S. Muddappa
and Ors. [AIR 1991 SC 1902], Apex Court while considering
the validity of the conversion of public purpose land, held that
it has to be made only on public interest and if any change,
alteration is made, the residents of the locality are the
persons, who are aggrieved persons:
“24. Protection of the environment, open
spaces for recreation and fresh air, play grounds for
children, promenade for the residents, and other
conveniences or amenities are matters of great
public concern and of vital interest to be taken care
of in a development scheme. It is that public interest
which is sought to be promoted by the Act by
establishing the BDA. The public interest in the
reservation and preservation of open spaces for
parks and play grounds cannot be sacrificed by
leasing or selling such sites to private persons for
conversion to some other user. Any such act would
be contrary to the legislative intent and inconsistent
with the statutory requirements. Furthermore, it
would be in direct conflict with the constitutional
mandate to ensure that any State action is inspired
by the basic values of individual freedom and dignity
and addressed to the attainment of a quality of life
which makes the guaranteed rights a reality for all
the citizens. See Kharak Singh v. The State of U.P.
and Ors. MANU/SC/0085/1962 : 1963CriL J329 ;
Municipal Council, Ratlam v. Shri Vardhichand and
Ors. MANU/SC/0171/1980 : 1980CriL J1075 ;
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Francis Coralie Mullin v. The Administrator, Union
Territory of Delhi and Ors. MANU/SC/0517/1981 :
1981CriL J306 ; Olga Tellis and Ors. v.
Bombay Municipal Corporation and Ors.
MANU/SC/0039/1985 : AIR1986SC180 ; State of
Himachal Pradesh and Anr. v. Umed Ram Sharma
and Ors. MANU/SC/0125/1986 : [1986]1SCR251
and Vikram Deo Singh Tomar v. State of Bihar,
MANU/SC/0572/1988 : AIR1988SC1782.
25. Reservation of open spaces for parks and
play grounds is universally recognised as a
legitimate exercise of statutory power rationally
related to the protection of the residents of the
locality from the ill~effects of urbanisation. See for
e.g: Karnataka Town and Country Planning Act,
1961; Maharashtra Regional and Town Planning Act,
1966; Bombay Town Planning Act, 1954; The
Travancore Town and Country Planning Act, 1120;
The Madras Town Planning Act, 1920; and the Rules
framed under these Statutes; Town & Country
Planning Act, 1971 (England & Wales);
Encyclopaedia Americana, Volume 22, page 240;
Encyclopaedia of the Social Sciences, Volume XII at
page 161; Town Improvement Trusts in India, 1945
by Rai Sahib Om Prakash Aggarawala, p. 35; et.
seq.; Halsbury-s Statutes, Fourth Edition, p. 17 et.
seq. And Journal of Planning & Environment Law,
1973, p. 130 et. seq. See also: Penn Central
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Transportation Co. v. City of New York, 57 L.Ed. 2d
631 438 US 104 (1978); Village of Belle Terre v.
Bruce Boraas, 39 L.Ed. 2d 797 416 US 1 (1974);
Village of Euclid v. Ambler Realty Co., 272 US 365
(1926) and Halsey v. Esso Petroleum Co. Ltd. [1961]
1 WLR 683.
…..
29. The residents of the locality are the
persons intimately, vitally and adversely affected by
any action of the BDA and the Government which is
destructive of the environment and which deprives
them of facilities reserved for the enjoyment and
protection of the health of the public at large. The
residents of the locality, such as the writ petitioners,
are naturally aggrieved by the impugned orders and
they have, therefore, the necessary locus standi.
…..
32. The impugned orders and the consequent
action of the BDA in allotting to private persons areas
reserved for public parks and play grounds and
permitting construction of buildings for hospital
thereon are, in the circumstances, declared to be null
and void and of no effect.”
32. Hon-ble Apex Court in Pt. Chetra Vashist vs Delhi
Municipal [1995 (1) SCC 47], has considered the rights of the
Delhi Municipal Corporation to impose condition that the open
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space for parks, schools to be transferred to the favour of
Corporation with free of cost and after considering various
provisions of the Delhi Municipal Corporation Act, observed in
paragraph no. 6 as follows:
“ 6. 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 to 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 layout plan. But the question
is, does it entitle 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 to itself. The effect of transfer of the
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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.”
33. This Court in Thai Nagar Welfare Association vs.
Special Commissioner and others [2008 (6) CTC 689] has
held that any variations or conversion of the land earmarked
as open space could not be converted into commercial
purpose. Further, if any variations, conversions or
modifications of the layout is prepared under Section 49(2) of
the Town and Country Planning Act, it must be decided based
on public interest and it is observed as follows:
“9. At the outset, it has to be noticed that when
an application is made for conversion of part of the
earmarked open space to the commercial purpose,
as per Section 49(2) of the Act, the appropriate
planning authority, shall, in deciding whether to grant
or refuse such permission, have regard to the
following matters, namely:
(a) the purpose for which permission is required;
(b) the suitability of the place for such purpose;
(c) the future development and maintenance of the
planning area.
….
11. The open space in a residential area or in
busy townships is treated as a lung space of the
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area. Where open space is preserved and
earmarked in the plan for development of a
planned town, the authorities cannot ignore the
public interest and allot the same for construction of
godowns, thereby causing environmental hazards
to the residents of the colony. In other words, when
an area is earmarked for a particular purpose in the
approved layout, the said area cannot be converted
or used for a different purpose. Open space is an
essential feature of modern planning and
development, as it greatly contributes to the
improvement of social ecology. The interests of the
residents of the area, who have purchased the
plots as per the approved layout, have to be
safeguarded and for the benefit of ecology, certain
areas should be earmarked for garden and park, so
as to provide fresh air to the residents of that
locality, as ecological factors indisputably are very
relevant considerations in construing a town
planning statute.”
34. In the present case, the promoters of the layout
namely Varivadu Chettiar layout (VVC layout) have submitted
the layout plan for developing their land and it was approved
by the Local Planning Authority. Based on this approval, the
promoters have come forward to execute gift deed,
transferring their right of the land, which has been earmarked
as a road to the extent of 40 feet, including the road
earmarked on the eastern side of the plot numbers 9 and 10.
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After gifting the above lands, the promoters have leased out
the said public road in favour of third parties and same is not
permissible and the lease itself is void abinitio.
35. The contention of the promoters / Private
Defendants is that the Corporation has not come forward to
lay road in the earmarked area, so they have converted the
land and used it for their own purpose. Subsequently, the land
is also sold to 12th Defendant. Even, in the absence of any
gift deed in favour of the Corporation, the promoters / private
respondents are not entitled to convert the public roads or
land earmarked for public use into a private property.
Admittedly, the land owners / promoters have not obtained any
assent from the Local Planning Authority to convert the public
road for their own use, hence on this ground also the claim of
the private respondent that they are entitled to use the land as
a private property is liable to be rejected.
16. The above judgment has been confirmed by the Hon’ble Supreme
Court by dismissing the Special Leave Petition Nos.8932-8934/2024 on
22.04.2024. Thus, the legal position on conversion of public purpose area
including OSR lands, parks, streets, playgrounds etc., by the developer or
sale of such common purpose land is illegal and cannot be approved by the
competent Authorities.
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17. In the present case, all the Authorities have taken a consistent view
that conversion of land is impermissible and rejected the request made by the
6th respondent. However, Empowered Committee has taken a decision in
favour of the 6th respondent and directed the 6th respondent to pay a sum of
Rs.48,57,500/- and an alternate portion of land in lieu of the land in occupation
of the 6th respondent. This Court has considered the view that the writ Court
has made a finding that the decision of the Empowered Committee is farcical.
The decision taken by a Single Authority by exercising power of three different
Authorities is impermissible and in the event of approving the said decision of
the Empowered Committee, the very purpose and object of constitution of the
Empowered Committee in consonance with the Regulations will be defeated.
18. Since the Government has failed to take appropriate decision in
consonance with the Regulations and constitution of Empowered Committee
is also improper, this Court is of the view that the matter is to be remitted back
to the Empowered Committee for taking a decision by considering the facts as
well as the legal position and other aspects of the matter.
19. Yet another ground raised before the Writ Court is that the appellant
has no locus to agitate the matter. In this regard Mr.N.Manoharan, learned
counsel for the appellant relied on the judgment of the Hon’ble Supreme Court
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in Bangalore Medical Trust Vs. B.S.Muddappa and others 3, wherein, the
Hon’ble Supreme Court made the following observations:
It is too late in the day, therefore, to claim that petition
filed by inhabitants of a locality whose park was converted into
a nursing home had no cause to invoke equity jurisdiction of
the High Court. In fact public spirited citizens having faith in
rule of law are rendering great social and legal service by
espousing cause of public nature. They cannot be ignored or
overlooked on technical or conservative yardstick of the rule of
locus standi or absence of personal loss or injury. Present day
development of this branch of jurispru- dence is towards freer
movement both in nature of litigation and approach of the
courts. Residents of locality seeking protection and
maintenance of environment of their locality cannot be said to
be busy bodies or interlopers S.P. Gupta v. Union of India,
[1982] 2 SCR 985–AIR 1982 SC 149; Akhil Bhartiya Soshit
Kararnchari Sangh v. U.O.I., [1981] 1 SCC 246–AIR 1981 SC
293 and Fertilizer Corporation Karngar Union v.U.O.I., AIR
1981 SC 364. Even otherwise physical or personal or
economic injury may give rise to civil or crimi- nal action but
violation of rule of law either by ignoring or affronting individual
or action of the executive in disregard of the provisions of law
raises substantial issue of accountability of those entrusted
with responsibility of the administration. It furnishes enough
cause of action either for individual or community in general to
approach by way of writ petition and the authorities cannot be
permitted to seek shelter under cover of technicalities of locus
standi nor they can be heard to plead for restraint in exercise
3
(1991) 4 SCC 54
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of discretion as grave issues of public concern outweigh such
considerations.
20. In view of the above judgment, the locus of the appellant need not
be questioned as the issue raised is for protection of park and playground
earmarked in an approved layout, which is for the benefit of the people
residing in the entire locality.
21. Accordingly, the resolution passed by the Empowered Committee in
in 33rd Empowered Committed meeting held on 30.08.2016 in Agenda No.26,
as well as the writ order dated 12.04.2022 in W.P.No.43824 of 2016 are set
aside. The matter is remanded back to the Empowered Committee for taking
fresh decision on merits and in accordance with law as expeditiously as
possible. The Empowered Committee shall provide opportunity to all the
parties including the petitioner to put forth their claims, counter claims etc.,
along with the documents, if any.
22. With these findings, the Writ Appeal stands allowed. No costs.
(S.M.S., J.) (K.S., J.)
10.03.2026
dsa
Index :Yes/No
Neutral Citation :Yes/No
Speaking/Non-speaking order
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To
1.The Commissioner,
Coimbatore City Municipal Corporation,
Coimbatore – 641 001.
2.The Member Secretary,
Local Planning Authority,
Sivananda Colony,
Coimbatore – 641 012.
3.The District Educational Officer,
Coimbatore – 641 001.
4.The Director of Town and Country Planning,
807, Anna Salai,
Chennai – 600 002.
5.The Chairman,
Empowered Committee,
The Secretary to Government,
Housing and Urban Development Department,
Secretariat, Chennai – 600 009.
6.The Executive Officer,
Kuniamuthur Panchayat,
Coimbatore District.
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S.M.SUBRAMANIAM, J.
and
K.SURENDER, J.
dsa
W.A.No.2551 of 2023
10.03.2026
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