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M. Ramakrishnan, Area Secretary, Communist Party of India (Marxist), Chennai Vs. The State of Tamil Nadu, Represented by its Principal Secretary, Department of Municipal Administration and Water Supply, Chennai and Others - Court Judgment

LegalCrystal Citation
CourtChennai High Court
Decided On
Case NumberW.P. No. 7244 of 2016
Judge
AppellantM. Ramakrishnan, Area Secretary, Communist Party of India (Marxist), Chennai
RespondentThe State of Tamil Nadu, Represented by its Principal Secretary, Department of Municipal Administration and Water Supply, Chennai and Others
Excerpt:
.....town and country planning act quashing of order petitioner sought to quash order passed by government in government order, housing and urban development as illegal, arbitrary and violative of article 21 of the constitution of india and consequential direction forbearing respondents from demolishing or altering the specified park court held as policy decision taken by government to easecongestion, said decision has been taken upon discretionary power vested with it for good cause and not otherwise park is to be used only as park and present park is relocated to adjacent area, without any reduction in space and change of its characteristics fourth respondent and fifth respondent-builder are directed to maintain park meant for public, without any hindrance petition..........government, after careful consideration of the matter, issued orders for widening the sardar patel road, strahans road and kaliamman koil street and other six roads, vide g.o.(ms)no.22, dated 06.02.2015 and thereafter, on identifying an alternate land to an extent of 2704.01 sq.m. to develop a proper park, took a decision to widen the strahans road by taking the existing park and the general lands of the corporation. 10. relying on the counter affidavit filed by the fourth respondent, mr.k.venkatramani, learned additional advocate general has submitted that the present park in strahans road is a strip of land with no lung spaces and it has got only shrubs. the proposed park is having lung space with areas for recreation. he further stated that the present park is only moved from the.....
Judgment:

(Prayer: Petition filed under Article 226 of the Constitution of India praying for issuance of a Writ of Certiorarified Mandamus calling for the concerned records relating to the order bearing G.O.Ms.No.113 dated 3.9.2015 (Ex-A) passed by the 1st respondent Department from the provisions of the Town and Country Planning Act more particularly Regulation No.28 of the Development Regulation which are framed in exercise of this Act and to quash the same as being illegal, arbitrary and violative of Article 21 of the Constitution of India and for a consequential mandamus forbearing the respondents herein, their agents or servants from demolishing or altering the Selvapathy Chettiar Park situated on Strahans Road, Perambur, Chennai or for converting it for any other purpose and award costs.)

R. mahadevan, J.

1. This writ petition has been filed to quash the order passed by the Government of Tamil Nadu in G.O.Ms.No.113, Housing and Urban Development (UD-I), dated 03.09.2015 as illegal, arbitrary and violative of Article 21 of the Constitution of India and for a consequential direction forbearing the respondents herein from demolishing or altering the Selvapathy Chettiar Park situated in Strahans Road, Perambur, Chennai.

2. The facts leading to the filing of this writ petition are as under:

(i)The petitioner is the Area Secretary of Thiru-Vi-Ka Nagar Constituency, North Chennai of the Communist Party of India (Marxist). The property in question which the fifth respondent wants to develop by putting up a multi-storeyed building is in Perambur Barracks Road, which is the petitioner's Constituency. It is stated by the petitioner that he is expressing the grievance of the people residing in that area, as the people's representative. He states that a park by name Selvapathy Chettiar Park has been there since 1948 which is being maintained by the fourth respondent Corporation and the said park was opened in commemoration of the services of one Selvapathy Chettiar, who was the founder of Madras Labour Union representing the workers. There are hundreds of trees in that park and the people of all ages are using that park. According to the petitioner, this park is sought to be appropriated with the connivance of the authorities in violation of the Tamil Nadu Parks, Play-Fields and Open Spaces (Preservation and Regulation) Act, 1959 ( Parks Act in short). On 20.11.2014, the fourth respondent Corporation passed a resolution identifying certain bus routes for expansion. Strahans Road was one such bus route. On the basis of the resolution, the fourth respondent Corporation addressed to the first respondent vide its letter dated 05.12.2014 and the first respondent made it clear to the fourth respondent that if it wants to expand the bus routes involving parks/lands, it should ensure that the parks and open spaces are substituted by equivalent amount of space and the same has to be maintained by them. The park in question is not in the bus route and it is in the opposite side of the bus route. Without calling for objections from the general public and without notifying under Section 5(2) of the Parks Act, exemption was granted by the authorities under Section 113 of the Tamil Nadu Town and Country Planning Act to the fifth respondent, who is a powerful builder and has got influence over the State authorities, by way of passing the impugned Government Order in G.O.Ms.No.113 dated 03.09.2015, exempting him from the provisions of the Act, more particularly Regulation 28 of the CMDA Building Regulations, which has been framed in exercise of the powers under the Act. The petitioner also challenges the approval granted by the fourth respondent Corporation on 09.06.2015 to the fifth respondent for putting up the multi-storeyed building, as it is in gross violation of the Tamil Nadu Town and Country Planning Act, and the Parks Act.

(ii)The petitioner states that as per Regulation 28 of the CMDA Building Regulations, the site of the multi-storeyed building shall not be less than 1500 sq.mts. It will have to abut a road not less than 18 metres in width or gain access from public road not less than 18 metres in width, through a part of the site which can be treated as an exclusive passage of not less than 18 metres in width. The width of the public road is less than 18 metres. Therefore, the exemption will involve the demolition of the park which is a huge one, on the Strahans Road side. In case the park has to be varied and demolished, objections under Section 5(2) of the Parks Act have to be called for and the same have to be considered under Section 5(4) of the Parks Act, which has not been done while granting exemption. The petitioner also states that the Hon'ble Supreme Court has held that where there are parks, playfields and open spaces, the same cannot be converted to hospitals / dispensaries or multi-storeyed building and if such conversion takes place, it is violative of public interest. Stating so, the present writ petition has been filed with the prayer as already stated supra.

3. Mr.N.G.R.Prasad, the learned counsel appearing for the petitioner has submitted that the exemption granted by the first respondent under Section 113 of the Tamil Nadu Town and Country Planning Act is illegal and mala fide. When the Courts have held that playground, parks and open spaces cannot be converted into private nursing homes, car parking area or leasing the same to sabhas or putting up multi-storeyed building for private purposes, it is unfair on the part of the respondents in passing the impugned order. Further, he stated that the builder should not make profit at the cost of the parks and playgrounds, which are meant for the benefit of the public. He contended that as per Regulation 28 of the CMDA Building Regulations, there should be 18 metres space in the general public road, but it has not been followed. It is his further submission that under Section 5(2) of the Parks Act, notice will have to be issued to the public for varying the park and approval has to be obtained under Section 5(4) of the Parks Act, but the same have not been done and hence, the authorities are not justified in demolishing the park at the behest of the fifth respondent, who is a builder. He further contended that if the present exemption is allowed, then the city will become a concrete jungle and children will have no space to play and elders will have no space to walk or relax, as the same has been granted contrary to the Parks Act and the CMDA Building Regulations. He further contended that the said park is a notified park under the Parks Act and hence the Government ought to have followed the procedure contemplated under Section 5 of the Parks Act, but they have failed to do so. He stated that it is not correct on the part of the Government to grant exemption even by subjecting to certain conditions, which has been done in this case, as the fifth respondent was granted exemption on condition that he has to construct a ration shop, public toilet, Corporation Division Office etc., which are to be demolished. He further submitted that imposing of this multi-storeyed building with luxurious flats will put the poor people to great inconvenience; the lung space will go with so many flats coming up. He also submitted that the exemption is not granted in public interest, but to help the private builder, which is not permissible, and the fifth respondent has been constructing this building without planning permission and undeterred by the lock and seal notice issued by the Corporation. The so-called permission dated 30.08.2016 has come during the pendency of the writ petition and it is only provisional. Stating so, the learned counsel for the petitioner submitted that this writ petition deserves to be allowed.

4. The learned counsel for the petitioner has relied on the following decisions in support of his contentions:-

(1)Bangalore Medical Trust v. B.S.Muddappa, reported in (1991) 4 SCC 54;

(2)Virender Gaur v. State of Haryana, reported in (1995) 2 SCC 577;

(3)M.I.Builders Pvt. Ltd. v. Radhey Shyam Sahu, reported in (1999) 6 SCC 464;

(4)Consumer Action Group v. State of Tamil Nadu, reported in (2000) 7 SCC 425;

(5)V.M.Kurian v. State of Kerala and others, reported in (2001) 4 SCC 215 and

(6)R.Chandran v. State of Tamil Nadu, reported in 2010(4) CTC 737;

5. The judgment of the Hon'ble Supreme Court in Bangalore Medical Trust v. B.S.Muddappa, reported in (1991) 4 SCC 54, has been relied upon in support of his contention that preservation of open spaces for parks and playgrounds is a legitimate exercise of statutory power relating to the protection of the residents of the locality from the ill-effects of urbanisation. In support of the contention that the Government has no power to sanction lease of the land which was vested in Municipality, the decision of the Hon'ble Supreme Court in Virender Gaur v. State of Haryana, reported in (1995) 2 SCC 577, has been relied upon. The judgment of the Hon'ble Supreme Court in M.I.Builders Pvt. Ltd. v. Radhey Shyam Sahu, reported in (1999) 6 SCC 464, has been relied upon by the learned counsel for the petitioner, wherein it has been observed that the dominant purpose under Section 114 of the U.P.Municipal Corporation Act, 1959, is to maintain park and not to earn huge profit by converting the same into shopping malls, and accordingly directed the Corporation to restore the park to its original shape and structure, even though the park was demolished and construction was done to the extent of 80%. The judgment of the Hon'ble Supreme Court in Consumer Action Group v. State of Tamil Nadu, reported in (2000) 7 SCC 425, has been relied upon, in support of his contention that the discretion of the Government must be exercised reasonably in furtherance of public policy and it must be exercised for public good and for public cause and not otherwise. In support of the contention that while granting exemption, the State Government cannot deviate from the provisions of Rules, and that the decision must be made only on the basis of the advise of specified authorities having specialised and technical knowledge about building construction and safety, the decision of the Hon'ble Supreme Court in V.M.Kurian v. State of Kerala and others, reported in (2001) 4 SCC 215 has been relied upon. The learned counsel for the petitioner also relied upon the decision of a Division Bench of this Court in R.Chandran v. State of Tamil Nadu, reported in 2010 (4) CTC 737, in support of his contention that where the use of site or premises is specifically designated as open space, it shall be used only for that purpose for which it has been so designated and not otherwise. Stating so, the learned counsel for the petitioner has submitted that this writ petition has to be allowed.

6. Counter affidavits have been filed by the first and second respondents. The first respondent, who adopted the averments made in the counter affidavit filed in respect of the fourth respondent-Corporation of Chennai, stated that G.O.Ms.No.113 was not passed by them. In the counter affidavit of the second respondent, it is stated that the fifth respondent as the Power Agent of M/s.Binny Limited, has applied planning permission for the proposed construction of multi-storeyed building and the site under reference abuts the Perambur Barracks Road and Strahans Road. It is stated that the Perambur Barracks Road does not have adequate road width to permit construction of the multi-storeyed building of 19 floors, but the other road, ie., Strahans Road on the North would be a qualifying road for the proposed construction, if the road is widened including the space of the park.

7. Relying on the counter affidavits filed by the first and second respondents, Mr.C.Manishankar, learned Additional Advocate General has submitted that the Government, in G.O.(Ms).No.22, Municipal Administration and Water Supply (MA-1) Department, dated 06.02.2015, issued orders to take over 2704.01 sq.m.of land in Strahans Road consisting of park and the Corporation land, for the purpose of widening the road subject to the condition that the same extent of land shall be identified and maintained as park area, and in turn, the fifth respondent, in their proposal, has demarcated an extent of 2704.1 sq.m.of land within the site along with the boundary of the northern side as park area to compensate the present road side park being ear-marked to widen the road. He further stated that shifting of the existing park to another place within the site of the fifth respondent / applicant having public access will facilitate widening of the Strahans Road to 18 metres and it will ease the traffic congestion and would serve good for the general public. He contended that as per the recommendation of the Multi-Storeyed Building Panel meeting, the Government in G.O.Ms.No.113, have approved the recommendation of the panel for issuing planning permission in this case by relaxing the road width which is less than 10% in certain stretches of 500 metres length as per CMDA Building Regulation 28(1)(b)(ii), imposing certain conditions. He added that in exercise of the powers conferred by Section 113 of the Tamil Nadu Town and Country Planning Act, the Government has relaxed the CMDA Building Regulation 28(2)(C) relating to minimum requirement of 18 metre road width varying from 0.02 metre to 0.63 metre over a length of 50 metre between the junction of Strahans Road and Angalamman Koil Street, since the availability of the number of roads around the site will take care of the smooth flow of the traffic. In these circumstances, he prayed that this writ petition has to be dismissed.

8. Reiterating the counter affidavit filed by the third respondent, Mr.N.Sampath, learned counsel for the third respondent has submitted that the Government, in G.O.(Ms)No.22, have issued orders for acquiring the Government land for road widening purpose and as per the G.O., the park along with Strahans Road does not come under the Parks Act. The fifth respondent has demarcated an extent of 2704.01 sq.m.of land within the site along the boundary of the northern side as park area to compensate the present road side park being earmarked to widen the road. In the event of the present park removed as part of widening of Strahans Road, then the site would be directly abutting the Strahans Road, making it a qualifying road for the proposed construction. As stated by the second respondent, he contended that as per the recommendation of the Multi-Storeyed Building Panel meeting, the Government in G.O.Ms.No.113, have approved the recommendation of the panel for issuing planning permission in this case by relaxing the road width which is less than 10% in certain stretches of 500 metres length as per CMDA Building Regulation 28(1)(b)(ii) and also imposed certain conditions. Forming part of his submissions, he further pleaded that upon consideration of the shifting of the park within the campus area of the fifth respondent, in exercise of the powers conferred by Section 113 of the Tamil Nadu Town and Country Planning Act, the Government has relaxed the CMDA Building Regulation 28(2)(C) relating to minimum requirement of 18 metre road width varying from 0.02 metre to 0.63 metre over a length of 50 metre between the junction of Strahans Road and Angalamman Koil Street, for the development of the project as provided under the plan, since the availability of the number of roads around the site will take care of the smooth flow of the traffic. Moreover, demand notice to pay the development and other charges was sent to the fifth respondent and the fifth respondent has also remitted all the required charges except MIDC charges. The fifth respondent has also forwarded the gift deeds duly signed by the donor for the existing street alignment portion in the Perambur Barracks Road, Link Road and OSR area for obtaining the donee's signature. Stating so, the learned counsel for the third respondent has submitted that this writ petition has to be dismissed.

9. A counter affidavit has been filed by the fourth respondent Corporation of Chennai in which it is stated that the Government, after careful consideration of the matter, issued orders for widening the Sardar Patel Road, Strahans Road and Kaliamman Koil Street and other six roads, vide G.O.(Ms)No.22, dated 06.02.2015 and thereafter, on identifying an alternate land to an extent of 2704.01 sq.m. to develop a proper park, took a decision to widen the Strahans Road by taking the existing park and the general lands of the Corporation.

10. Relying on the counter affidavit filed by the fourth respondent, Mr.K.Venkatramani, learned Additional Advocate General has submitted that the present park in Strahans Road is a strip of land with no lung spaces and it has got only shrubs. The proposed park is having lung space with areas for recreation. He further stated that the present park is only moved from the existing Strahans Road to an alternate site. The present park is not a notified park and hence there is no need for a separate de-notification. He contended that the existing park is only taken up for road widening and as such no buildings will be built in the widened land. He further stated that the present park in Strahans Road is utilised only for the purpose of road as mentioned in G.O.(Ms)No.22, and the Corporation of Chennai has not proposed to convert it into hospitals / dispensaries or multi-storeyed buildings. It is only a policy matter of the Corporation of Chennai to widen arterial roads to ease congestion, and there is no violation made in widening the Strahans Road. Forming part of his submissions, the learned counsel for the fourth respondent has also pleaded that upon consideration of the shifting of the park within the campus area of the fifth respondent, the Government has relaxed the CMDA Building Regulation 28(2)(C) for the development of the project as provided under the plan. Stating so, he prayed that this writ petition has to be dismissed.

11. A counter affidavit has been filed by the fifth respondent in which it is stated that the present writ petition has been filed only for the benefit of the petitioner and to gain publicity in the locality. It is stated that the fifth respondent is the absolute owner of the entire property situated in Block No.34, Purasawalkam Village. The said property has got two side entrances, viz.on the western side-Perambur Barracks Road and on the northern side-Strahans Road. The fourth respondent, after careful consideration, issued orders to widen the roads in six areas including Strahans Road as per G.O.(Ms)No.22 and due to the same, the fourth respondent decided to relocate the present park which is existing on the road side without any facilities, to the space inside the fifth respondent's site. On agreeing to the same by the fifth respondent, the fourth respondent identified a place inside the fifth respondent's site for development of park. The fourth respondent also laid a condition that the expenses for development of park shall be borne by the fifth respondent. Thereafter, a gift deed was executed by the fifth respondent to the fourth respondent to an extent of 2704.01 sq.m. vide Document No.230 of 2016 for development of park and accordingly the existing park measuring 2407.01 sq.m. was relocated to the place gifted by the fifth respondent, for the purpose of widening the Strahans Road. It is further stated that no trees were removed or cut off from the existing park and the general public did not raise any objections in any manner as alleged by the petitioner. It is further stated that the park proposed to be built in the place given under the gift deed will have facilities like children play area, walking area, adult exercise area, yoga centre, volley ball court etc., and there is no violation of any Act.

12. Relying on the counter affidavit filed by the fifth respondent, Mr.P.S.Raman, learned senior counsel appearing for the fifth respondent, strongly denied the allegations made by the petitioner against the fifth respondent and stated that there is absolutely no violation in putting up any construction over the land belonging to the fifth respondent and the planning permissions have been granted after due fulfilment of all requirements. The proposed construction is also not in violation of the Tamil Nadu Town and Country Planning Act, and the Parks Act. He contended that there is no necessity to issue any public notice and there is no need to get any objection from the general public as the said park is not a notified park. Stating so, he prayed this Court for dismissal of the writ petition.

13. Heard the learned counsel on either side and perused the materials available on record carefully.

14. It is true that the courts have consistently held that playgrounds, parks and open spaces cannot be converted into private nursing homes or car parking area, nor can they be leased for any private purposes. It was held by the Honourable Supreme Court in the case of Bangalore Medical Trust v. B.S. Muddappa, supra, as follows:

Public Park as a place reserved for beauty and recreation was developed in 19th and 20th century and is associated with growth of the concept of equality and recognition of importance of common man. Earlier it was a prerogative of the aristocracy and the affluent either as a result of royal grant or as a place reserved for private pleasure. Free and healthy air in beautiful surroundings was privilege of few. But now it is a, gift from people to themselves . Its importance has multiplied with emphasis on environment and pollution. In modern planning and development it occupies an important place in social ecology

Protection of the environment, open spaces for recreation and fresh air, playgrounds 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 The public interest in the reservation and preservation of open spaces for parks and playgrounds 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 Reservation of open spaces for parks and playgrounds 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.

Therefore the preservation of open spaces and public parks to promote and protect the social and biological welfare of the residents of an urban locality has been strongly advocated by the Honourable Apex Court.

15. The point to be looked into is whether relocating of the present park affects the public interest or not. Such an apprehension may not survive in view of the fact that the present park is not totally vanished, but relocated to the adjacent area, only to facilitate widening of the road. Widening of the road will ease congestion and it will serve only good to the public. Further, it has been affirmed that the park will be used only as a park and it will not be used for any other purposes and the total area of the park, ie.2704.01 sq.m., is not reduced and the same space is maintained. It has also been assured that relocated park will have facilities such as a children play area, walking area, adult exercise area, yoga centre, volleyball court, etc.

Since the public interest is not affected, the contention of the learned counsel for the petitioner that notice under Section 5(2) of the Parks Act should have been issued to the public for varying the park and approval has to be obtained under Section 5(4) of the Parks Act, does not hold water.

16. This being the position, it must also be remembered that the State Government has an inherent right to make out a policy on a bona fide consideration, and the same cannot be assailed in law. In the case of Narmada Bachao Andolan vs Union of India, reported in (2000) 10 SCC 664, it was held as follows:

It is now well settled that the courts, in the exercise of their jurisdiction, will not transgress into the field of policy decision. Whether to have an infrastructural project or not and what is the type of project to be undertaken and how it is to be executed, are part of policy-making process and the courts are ill-equipped to adjudicate on a policy decision so undertaken. The court, no doubt, has a duty to see that in the undertaking of a decision, no law is violated and the peoples fundamental rights are not transgressed upon except to the extent permissible under the Constitution

The Honourable Supreme Court has also held in Ekta Shakti Foundation v. Govt. of NCT of Delhi, (2006) 10 SCC 337 that:

The correctness of the reasons which prompted the Government in decision-making taking one course of action instead of another is not a matter of concern in judicial review and the court is not the appropriate forum for such investigation.

The policy decision must be left to the Government as it alone can decide which policy should be adopted after considering all the points from different angles. In the matter of policy decisions or exercise of discretion by the Government so long as the infringement of fundamental rights is not shown, the courts will have no occasion to interfere and the court will not and should not substitute its own judgment for the judgment of the executive in such matters. In assessing the propriety of a decision of the Government the court cannot interfere even if a second view is possible from that of the Government.

17. In the present case, since a policy decision has been taken by the fourth respondent, to widen the roads, the Government, in exercise of its powers, relaxed the CMDA Building Regulation 28(2)(C) relating to minimum requirement of 18 metre road width varying from 0.02 metre to 0.63 metre over a length of 50 metre between the junction of Strahans Road and Angalamman Koil Street, as the availability of the number of roads around the site will take care of the flow of traffic freely. It is a policy decision made and hence the same cannot be interfered with in the absence of adequate reasons. In such circumstances, the contention of the learned counsel for the petitioner that the exemption granted to the fifth respondent under Section 113 of the Tamil Nadu Town and Country Planning Act is illegal and mala fide, deserves only to be rejected, because the fourth respondent had already issued orders to widen the roads in six areas including Strahans Road as per G.O. (Ms) No. 22 and due to the same, it was decided to relocate the present park which is existing on the road side to the space inside the site of the fifth respondent. The decision for relocating the present park was made only after the fourth respondent took a decision to widen the roads as stated above. To better appreciate the requirement of road widening and relocation of park, the area plan submitted by the fifth respondent is attached herewith.

18. As a policy decision taken by the Government to easecongestion, the said decision has been taken upon a discretionary power vested with it for a good cause and not otherwise. The park is to be used only as a park and the present park is relocated to the adjacent area, without any reduction in space and change of its characteristics. Further, according to the learned Advocate Generals, the present park area is always vested with the corporation and the same will be utilised and maintained only as a park without causing any hindrance to the public. Therefore in any angle, the contentions put forth by the learned counsel for the petitioner will not survive, and the decisions relied upon by the learned counsel will not come to the rescue of the petitioner.

19. In view of the reasons state supra, the writ petition is disposed of accordingly. The fourth respondent CMDA and the fifth respondent builder are directed to maintain the park meant for the public, without any hindrance to them. It is open to the Government as well as the authorities concerned to take appropriate legal action against the fifth respondent, in case of any hindrance having been caused by them to the general public for the usage of the park newly developed or for violation of any norms connected therewith. No costs.


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