CDJ Law Journals

(Prayer: Writ Appeal filed under Clause 15 of Letters Patent as against the order passed by this Court in W.P.(MD)No.8630 of 2009 dated 20.10.2023.

Writ Appeal filed under Clause 15 of Letters Patent as against the order passed by this Court in W.P.(MD)No.8630 of 2009 dated 20.10.2023.

Writ Appeal filed under Clause 15 of Letters Patent as against the order passed by this Court in W.P.(MD)No.8630 of 2009 dated 20.10.2023.

Writ Appeal filed under Clause 15 of Letters Patent as against the order passed by this Court in W.P.(MD)No.8630 of 2009 dated 20.10.2023.)

Common Judgment:

N. Sathish Kumar, J.

1. All the above Writ Appeals have been filed challenging the order of the learned Single Judge allowing the Writ Petition and directing the authorities to remove the unauthorised developments.

2. The parties are referred to as per their ranks in W.A. (MD)No.1970 of 2023

3. The writ petition was originally filed by the first respondent/Writ Petitioner Association seeking a direction to respondents 2 to 4 to remove the unauthorized developments made in the areas earmarked for a park, community hall, primary school, car parking, and open space in the approved layout dated 31.07.2003 in Na.Ka.No.15914 of 2003.

4. The contention of the first respondent/Writ Petitioner that an extent of 15.71 acres in RS.No.17B, 20B/8, 10, 11, 12, 13, 21, 22/1, 2A, 23B/1A1, 2A and 4A in Madakulam Village, C-Ward 41, Madurai was developed and promoted by the appellant as housing plots and the same was approved by the third respondent vide proceedings in Na.Ka.No. 15914/2003, dated 31.07.2003. While approving the layout plan, specific conditions were imposed stipulating that the open space shall be maintained in its original form.

5. Further, it is the contention of the first respondent/Writ Petitioner that an extent of 24250.09 sq.mt. is shown as the open space in the approved layout. However, in the open space situated in Sector 1, four row houses have been constructed and sold, although the area was required to be maintained as open space. The appellant with the connivance of the officials of the 4th respondent Corporation have obtained a modified plan, wherein the places earmarked for park, primary schools and car parking have been obliterated without the knowledge of the residents of the association. According to the first respondent, the unauthorized development is in violation of Section 56 of the Tamil Nadu Town and Country Planning Act, and therefore, the first respondent sought the removal of the unauthorized development.

6. Further it is the stand of the first respondent/Writ Petitioner that as per the layout condition, the old building in Sector-I has to be demolished and primary school has to be built. However, the appellant sold the particular area along with the old building to 5th respondent, who in turn using the same for his personal use as against the approved layout plan. Similarly, the western and northern side of Sector-III was originally earmarked for car parking. The old building in the said area ought to have been demolished as per the layout conditions. However, till date, the old buildings have been utilized by the appellant for his personal use. The vacant place in the northern side of sector-III is also used by him by storing wooden logs, thus the areas surrounding Sector - V has been encroached by the appellant by putting temporary sheds and letting out for commercial purpose. Further the main road inside the enclave has to be with an extent of 7.2m width from the main entrance gate to northern compound wall, but the road from the main entrance to Sector-I is very narrow much lesser to 7.2m causing traffic congestion and inconvenience to the 2500 residents more than 680 families.

7. It is the stand of the appellant that the first respondent/writ petitioner had earlier filed a suit in O.S.No.1168 of 2008 and subsequently withdrawn the same, and therefore has no right to maintain the writ petition. It is the further contention of the appellant that approval originally granted on 31.07.2003 was modified on 19.09.2003, 22.10.2003 and 27.03.2026. After original plan, there was no need to increase the green area nearer to the sectors. In order to achieve this objective, the appellant sought revision of the original approval, and the same was granted by the authorities in accordance with law. The open space reservation available for the use of residents in common in the enclave as per the rules revised proposal is set out below:

Sl.No.	Curent File No	Location of reserved spaces	Area in sq.Mt
01.	CPO2/13398/ 03, 20.08.2003	Sector – I	2418.75
02	-do-	Sector -II &V Junction	656.50
03	-do-	Behind Sector IIIB & IV	3339.50
	Total		6414.75

8. The open space reservations available for the usage of the residents in common in the enclave as per the revised approval is as follows:

Sl.No.	Curent File No	Location of reserved spaces	Area in sq.Mt
01.	SZ01/09708/ 07	Sector – I	139.35
02		Sector –II	544.30
03		Sector IIIA	Sector IIIA
03		Sector IV	3339.50
05		Sector-V	1966.75
	Total		6821.40

9. Only with a view to provide a larger area in one location, where the concentration of flats are high, the appellant sought revision of the reservation and the same was also accepted by the 4th respondent and approval has been accorded after due consideration of the relevant factors. As per the revised plan, the total area reserved for common use is 6,821.40 sq. m., which works out to 10.68% of the total site area. The area of 2,418.75 sq. m. originally earmarked for park and recreational purposes in Sector-I, situated immediately in front of the bungalow, constitutes 3.78% of the total site area and is in excess of the statutory requirement. Since the statutory requirement of reserving 10% of the land for common use has already been satisfied, as detailed above, the planning authority, viz., the appellant, is permitted to retain the said area as a private green area for its exclusive use and enjoyment. The 5th respondent has purchased the bungalow with garden from the appellant and is maintaining the open space as a garden in front of the bungalow. Hence, submitted that there is no violation.

10. It is the contention of the third respondent in the counter that there was no layout has been approved in Ref.No.C.No.15914/2003, dated 31.07.2003. Actually it is not a layout approval but an approval accorded for the construction of a housing project. In a housing project, the first respondent can apply for revised approval seeking permission for relocation of areas reserved for common purposes and also for relocation various types of blocks of houses or flats or dwelling units as the case may be and modification in other aspects which will be beneficial for the project. It is also stated that common amenities such as park as recreation and other three parks places mentioned in the site plan are kept in vacant. Finally, approval was given by the Director of Town and Country Planning, Chennai vide proceedings in Roc.No.5216/2006 BA1, dated 27.03.2006. Though the new approval from the Director of Town and Country Planning proceedings Roc.No.15914/03 BA1 dated 31.07.2003 was granted, later based on the request, three modification orders were issued by the Director of Town and Country Planning.

11. Further, it is stated in the counter that the area reserved constitutes 10.09% of the total extent of the site. This area exceeds the percentage of land required to be reserved for public use. As per the revised plan, the necessary sanction has been granted to keep the bungalow for residential use. Originally, it was proposed to convert the old bungalow as community hall, shopping, clinic, mini theatre, canteen and restaurants, nurshing homes like other facilities under commercial use. Therefore, as per the revised proposal to construct four independent bungalows by demolishing the old bungalow and making alternative arrangements for commercial use, the same was consented to by the third respondent vide proceedings dated 27.03.2006. Hence, the conversion of the community hall space for the construction of four residential units was sanctioned as early as 24.11.2006. Hence, it is contended that the requirement of 10% reservation for open space is being duly preserved intact and that there is no violation. However, the learned Single Judge allowed the writ petition, directing the authorities to remove the unauthorised development on the ground that, as per Rule 9(2)(c) of the Development Control Regulations (hereinafter referred to as “the Regulations”), any development of layouts without obtaining specific approval under these regulations shall be construed as unauthorised development. Challenging the same, the Writ Appeals have been filed.

12. Mr.Dana Seshadhri Naidu, the learned Senior Counsel appearing for the appellant in W.A.(MD)No.1970 of 2023 would submit that the learned Single Judge proceeded on a wrong assumption that there was layout approval, spaces earmarked for public purposes were converted and that subsequently modified plans had been issued. It is the contention of the learned Senior Counsel that the layout was never developed. Originally, sanction was accorded for the construction of a group of houses subject to certain conditions. The company framed a scheme for the construction of a group of houses and obtained permissions as per the Detailed Development Plan. The permission itself was accorded under the Detailed Development Plan. Though certain areas had been earmarked as per the proceedings dated 31.07.2003, later the plans were modified and finally the revised plan was approved on 27.03.2006, wherein the salable area was permitted to be converted into residential area. Therefore, it is contended that the entire lung space has been maintained and there is no violation. The learned Single Judge proceeded on the basis that a layout plan had been approved and was later modified, and applied Rule 9 of the Development Control Rules, which has no connection with the grant of approval for the group housing.

13. Further, it is the contention of the learned Senior Counsel appearing for the appellant that the learned Single Judge has given much importance to the Commissioner's report. According to the learned Senior Counsel appearing for the appellant, the Commissioner was directed to submit a report solely on the basis of the first plan available at the time of inspection. Therefore, the said report cannot have any bearing on the issues involved in the present case. Be that as it may, the fact remains that the required lung space has been duly maintained, and there is no violation with regard to either the width of the road or the prescribed percentage of open space. Hence, it was submitted that there is absolutely no violation of the Detailed Development Plan sanctioned by the competent authorities.

14. Further, it is his contention that the company, which originally framed the scheme and subsequently obtained the necessary permissions and modifications to the plan from the competent authorities, has not been impleaded as a party to the proceedings. Likewise, the purchasers who acquired plots after the modification and conversion of the original plan have also not been made parties to the writ petition. Therefore, it was submitted that, in the absence of the necessary and proper parties, the learned Single Judge was not justified in allowing the writ petition. Further, all the subsequent modified plans approved by the competent authorities have not been challenged by the first respondent/writ petitioner. It is also the contention of the appellant that the members of the Association were fully aware of the modifications made to the original plan, however, no challenge was raised against the same at any point of time. Therefore, it was submitted that, without challenging the revised approvals and consequential orders, the writ petition seeking a writ of mandamus directing the removal of the development on the ground that it is unauthorized is not maintainable in law.

15. It is the further contention of the learned counsel appearing for the appellant that the regulations permit exemptions and modifications as per Rule 4(iii). The Rule 9(2)(c)(viii) of the Regulations relates to G.O.Ms.NO.130 dated 14.06.2010, which formulated Development Control Regulations. The said Rule refers to Layout and Subdivisions applicable for industrial developments and not for residential zones.

16. He would further submit that the Hon'ble Supreme Court in the case of Pillayar P.K.V.K.N.Trust vs. Karpaga N.N.U.S. and others, reported in (2010) 9 SCC 344, has held that application for sanction could be rejected only in case in the detailed development plan came under the classification "reserved for public purpose". Once the land, even it was reserved for public purpose like construction of school in the plan and got released because it was not acquired for more than 3 years in terms of Section 38 of the Tamil Nadu Town and Country Planning Act, the same cannot be taken away from the owner on the specious plea under Section 250 of the Madurai Corporation Act.

17. Further, the Hon'ble Supreme Court in the case of Pt.Chet Ram Vashist vs. Municipal Corporation of Delhi, reported in (1995) 1 SCC 47, has held that there is no provision to state that a Corporation could claim that the land so specified in a layout plan reserved for school or park or street be transferred free of cost. In the present case, admittedly neither the school nor the community hall were reserved in the plan to be maintained thus. Those were earmarked for commercial exploitation by the promoter without there being any compulsion in the planning conditions.

18. Similarly, Mr. Ragavachari, learned Senior Counsel appearing for the appellant in W.A.(MD) No.1979 of 2023, contended that the learned Single Judge erred in proceeding on the ground that a layout plan had been approved. In fact, the approval granted by the competent authority was only in respect of a development plan for a group housing scheme and not a layout plan. In any event, it was contended that the entire lung space has been duly maintained and that the park and other common areas have neither been altered nor converted, but have been retained in their original form. It was further submitted that only the saleable area, as permissible under law, has been alienated. According to the learned Senior Counsel, such alienation was effected pursuant to the approval granted by the competent authority, which permitted the inclusion of an additional 10% area in the saleable portion under the modified plan. He would further submit that, the bona fide purchasers have purchased the respective flats or houses in the enclave paying valuable consideration and none of the residents have been arrayed as parties in the subject proceedings. By not challenging the sanctioned plans based on which the appellants's wife has purchased, the Writ Petition must be dismissed. Therefore, it was submitted that the learned Single Judge was not justified in allowing the writ petition.

19. Mr.S.R.Ragunathan, learned counsel appearing for the first respondent in W.A.(MD)No.1970 of 2025 would submit that the plan was approved on 31.07.2003 for construction of 673 house plots. Therefore, according to him, it is only a layout plan. The plan clearly stipulates that the park and other common area should have been maintained as such. However, without the consent of the purchasers or members who had purchased the plots, the layout plan was subsequently modified through orders dated 19.09.2003 and 22.10.2003, whereby the areas earmarked for public purposes, namely the primary school site and other common areas, were utilised for other purposes. The area reserved for a park was also sold and retained by the 5th respondent. Hence, it is his contention that absolutely there is no violation to all the building rules. Hence, would submit that once reserve is made in the plan it creates obligation on the owner of the land to protect the interest of the public. Therefore, every member of the association has vested right to enjoy the common area. Therefore, the authorities have no right whatsoever to modify or revise the plan already sanctioned. In support of his submissions, he relied upon the following judgments:

                   (i) Bangalore Medical Trust Vs. B.S.Muddappa and Others reported in (1991) 4 SCC 54;

                   (ii) PT.Chet Ram Vashist (dead) By Lrs. Vs. Municipal Corporation of Delhi reported in (1995) 1 SCC 47;

                   (iii) Krishna Nagar Residents Welfare Association Vs.The Director of Town and Country Planning reported in 2001-3-LW.828;

                   (iv) Arumuganar Residents Welfare Association Vs. State of Tamil Nadu reported in 2010-4-LW.76;

                   (v) K.Rajamani Vs. Alamunagar Residents' Welfare Association reported in 2011 (1) CTC 257;

                   (vi) G.S.Senthilkumar Vs. The Director, Director of Town and Country Planning, Chennai in W.P.No.12853 of 2021, dated 23.07.2024;

                   (vii) Hotel Sea Gull Vs. State of W.B and others reported in (2002) 4 SCC; and

                   (v) M/s.S.J.S.Business Enterprises (P) Ltd. Vs. State of Bihar & Ors. reported in 2004 (5) Supreme 485;

                   (viii) Bharathidasan University Vs. All India Council for Technical Education reported in 2001(7) Supreme 196; and

                   (x) Consumer Action Group and Another Vs. State of Another reported in (2000) 7 Supreme Court Cases 425

20. Mr.Janarthanan, learned counsel appearing for the first respondent in W.A.(MD)No.1979 of 2023 is also adopted the submissions of Mr.Ragunathan, learned counsel appearing for the first respondent in W.A.(MD)No.1970 of 2023

21. We have heard the learned Senior Counsel and the learned counsel appearing on either side and perused the materials available on record.

22. The Writ Petition was originally filed by the Association in the year 2009 on the ground that the areas reserved for public purposes in the originally sanctioned layout plan had been converted into house sites. It was further alleged that the space earmarked for a primary school had neither been utilised for the said purpose nor maintained as such, but continued to be retained as an old residential building. It was also contended that the area shown as a park in the approved layout plan had been sold to the 5th respondent. The learned Single Judge allowed the Writ Petition, holding that, in terms of Rule 9(2)(c) of the Regulations, layout development carried out without obtaining specific approval from the competent authority would amount to unauthorized development and consequently, issued appropriate directions for the removal of the unauthorized constructions/developments.

23. The counter affidavits filed by the authorities as well as the DTCP disclose that 10% of the total extent has been earmarked and maintained as open space reservation. It is the specific case of the appellants that no layout approval was ever granted and that the approval accorded was only in respect of a group housing scheme under the then prevailing regulations. The first respondent/Writ Petitioner, however, proceeded on the premise that a layout plan had been sanctioned and that the subsequent developments constituted deviations therefrom. Therefore, the contention that the authorities had no jurisdiction to modify the approved plan at a later point of time cannot be sustained.

24. We have perused the original plan sanctioned by the third respondent on 31.07.2003. A reading of the said sanction order reveals that permission was accorded for the construction of 673 group houses under the Detailed Development Plan. The approval was not granted under the Development Control Rules governing the sanction of layout plans. The sanction order further stipulates that, in the event of any future development or formation of roads, the requisite land shall be handed over to the local body. It is relevant to note that, while granting approval for a layout, one of the primary conditions ordinarily imposed is that the areas reserved for roads and other public purposes are to be handed over to the local body before the grant of approval. However, the conditions contained in the proceedings dated 31.07.2003 indicate that such a requirement was contemplated only in the event of future development. This clearly indicates that the approval in question was not a layout approval in the conventional sense. Therefore, it is abundantly clear that no layout plan had been sanctioned and that the approval granted was confined only to the construction of a group housing project.

25. It is relevant to note that the planning permission was obtained on 31.07.2003. It is stated that, at the relevant point of time, G.O.Ms.No.130, Housing and Urban Development (UD 4-1) Department, dated 14.06.2010, was in force. The Development Control Regulations sought to be applied for the group developments and layout approvals in the local planning areas of Coimbatore, Madurai, Tiruchirappalli, Salem, Tirunelveli, Vellore, Mamallapuram, and other similarly placed areas. For the first time, on the proposal of the Director of Town and Country Planning, the Government issued orders prescribing the requirement of a licence for group development as well as layout developments, as reflected in the Annexure to the said Government Order. Under Notification No.5 appended thereto, the Development Control Regulations were introduced into the Madurai Local Planning Area.

                   “NOTIFICATION-5.

                   In exercise of powers conferred by sub-section (4) of section 32 of the Tamil Nadu Town and Country Planning Act, 1971 (Tamil Nadu Act 35 of 1972), the Governor of Tamil Nadu hereby makes the following variation to the master plan for Madurai Local Planning Area approved under the said Act and published with the Housing and Urban Development Department Notification No.II(2)/HOU/645/95 at pages 190 and 191 of Part II - Section 2 of the Tamil Nadu Government Gazette, dated the 22nd February 1995.”

26. The Annexure deals with the Development Control Regulations. Rule 4 thereof pertains to group development, which reads as follows:

                   “4.Group development.- (1) Group Development means accommodation for residential, commercial or institutional building in two or more blocks of buildings in a particular site irrespective of whether these structures are interconnected or not. Any inter link between the structures in terms of connecting corridors shall not be construed as making any two structures into one block. However, if these blocks are connected solidly atleast for one-third the width of any one block on the connecting side, then such block shall be construed as a single block.

                   (2) (a) The minimum width of the public road on which the site abuts or gains access shall be 9 metres.

                   Explanation.- The qualifying road width for permitting Group development shall be available for a reasonable stretch say about 250 metres along the length of the road abutting the site and the stretch from a junction can be straight or a curve or zigzag or combination of the above. Any deviation on road width shall be referred to Empowered Committee whose decision shall be final.”

27. Clause 20 of Rule 4 imposes certain restrictions, which read as follows:

                   “(20) In cases where the extent of the site where residential or predominantly residential developments proposed exceeds 10000 square metres (1 hectare), the developer shall reserve minimum ten per cent of the site area (excluding roads if any handed over to local body) and provide housing thereon for lower income groups with dwelling units not exceeding 45 square metres in floor area each, either within the site proposed for group development or in a location within a radius of 5 k.m. from the site under reference. The developer or promoter or owner shall sell these small dwellings only for this purpose. No conversion or amalgamation shall be permissible in these cases of lower income group dwellings.”

The same clearly indicates that permission shall be granted only for lower-income groups for the construction of dwelling units.

28. The above Rules, which were in force at the relevant point of time, clearly indicate that no layout plan was sanctioned and that the approval granted was only for group development, which was permissible under G.O.Ms.No.130. The learned Single Judge primarily proceeded on the basis that there was a violation of Rule 9 of the Development Control Regulations applicable to the Erode, Vellore, Tiruvallur, Coimbatore, Madurai, Gummudipoondi, Kancheepuram, Salem, Chengalpattu, Tiruppur, and Tiruchirappalli Local Planning Areas.

29. On a careful perusal of Rule 9 of the Regulations relied upon by the learned Single Judge, it is evident that the said provision pertains to layouts and subdivisions, and the learned Single Judge has held that there is a violation of Rule 9(2)(c)(vii). It is pertinent to note that, although the learned Single Judge has applied the said Rule, the same is applicable only to industrial development. Rule 9(2)(c)(vii) reads as follows:

                   “9.Layout and Subdivisions:

                   (1).....

                   (2) (a)...

                   (b) ....

                   (c) Roads for industrial developments:

Description	Minimum width of road	Remarks
(1)	(2)	(3)
(a) The length of road upto 150 metres	9.0 metres	The road may be private or public.
(b) The length of road upto 150 to 200 metres	12 metres	The road shall become public
(c) The length of road upto 200 to 250 metres	15 metres	The road shall become public
(d) The length of road upto 250 to 500 metres	18 metres	The road shall become public
(d) The length of road more than 500 metres	24 metres	The road shall become public

                   (i) to (vi) .......

                   (vii) The procedure for approval of layouts will be as per the G.O.Ms.No.134, Municipal Administration and Water Supply Department, dated 20.09.2002 and G.O.Ms.No. 71, Rural Development (C2) Department, dated 16.6.2003.”

30. The learned Single Judge has proceeded on the premise that there is a violation of Rule 9(2)(c)(vii) of the Regulations. In fact, Rule 9(2)(c)(vii) relates to industrial development. Therefore, we are of the view that the learned Single Judge erred in applying a provision which pertains to industrial development to the facts of the present case. It is further to be noted that the learned Single Judge was also of the view that the specific areas allotted for a primary school, community hall, park, playground, etc., in the original layout had been utilised by the promoter for his own monetary benefits. It is relevant to note that, as already stated, permission was granted only for group housing and group development, which is permissible under G.O.Ms.No.130. The very condition imposed at the initial stage indicates that any change of user could be effected only with the permission of the competent authority. Accordingly, subsequent permissions were obtained. It is not in dispute that the open space, viz., the lung space, has been maintained as a park, and the OSR is still maintained at more than 10%. The Corporation has also asserted in its counter that more than 10% is still being maintained. The only grievance is that the 10% area, other than the park and meant for a primary school and other recreational purposes, has not been utilised and has been sold. It is relevant to note that this area is always retained by the developer for its own interest. With the permission of the authorities, they retained it as an old building instead of demolishing it for use as a primary school. As long as the need for establishing a primary school has not arisen, it cannot be said that the area should be utilised solely for that purpose.

31. It is also relevant to extract Rule 19 of the Development Control Rules, 2004, which reads as follows:

                   “19. Layout and sub-division :- (a) The laying out and sub-division of land for building purposes shall be carried out only in accordance with the provisions specified below.

                   (i) The width of the streets and roads in the layouts shall conform to the minimum requirements given below and be in conformity with the development plan, if any, for the area except in group housing, flats or in area reserved for Economically Weaker Sections.

                   (ii) No plot in a layout shall be sub-divided or utilized for any purpose other than the purpose for which the site is approved except with the prior approval of the authority.

                   (iii) Reservation of land for communal and recreational purposes in a layout or sub-division for residential, commercial, industrial or combination of such uses shall be as follows.

                   Extent of layout (1)

                   Reservation (2)

                   For the first 3000 square metres : Nil

                   Between 3000 square metres and 10,000 square metres:

                   10 percent of the area excluding roads or in the alternative he shall pay the market value of equivalent land excluding the first 3000 square metres as per the valuation of the registration department. #No such area reserved shall measure less than 100 square metres with a minimum dimension of 10 metres.

                   The space so reserved shall be transferred to the Authority or to the Local body designated by it, free of cost, through a deed, and in turn the Authority or the Local body may permit the residents Association or Flat owners Association for maintaining such reserved space as park. In such cases public access for the area as earmarked shall not be insisted upon.

                   Above 10,000 square metres:

                   10 percent of the area excluding roads shall be reserved and this space shall be maintained as communal and recreational open space to the satisfaction of the authority or transferred to the authority for maintenance. It is obligatory to reserve 10 percent of the layout area.

                   (iv) The space set apart for roads and the 10% area reserved for communal and recreational purposes under item (iii) above shall be deemed to zoned for institutional open space and recreational use zone as the case may be. The land so registered shall be transferred to the Authority or Agency or the Local body designated by the Authority through a registered deed before the actual approval of the layout under the provisions of T&CP Act.

                   The exact mode of conveyance should be consistent with the relevent enactment and regulations.

                   (v) The building and use of land shall conform to the conditions that may be imposed while sanctioning the layout. The space set apart for commercial, institutional, industrial or other uses shall be deemed to be zoned for commercial, Institutional, Industrial corresponding uses under the Master Plan.

                   (vi) The land for communal and recreational purposes shall be restricted to ground level, in a shape and location to be specified by the Chennai Merropolitan Development Authority. The land so reserved shall be free from any construction by the layout owner, developer or promoter.

                   (vii) 10 percent of layout area, additionally, shall be reserved for Public Purpose in those layouts which are more than 10000 sq.m. in extent. Interested departments shall be given intimation of layout approval by the CMDA and requested to purchase the land from the owner or developer or promoter, on paying the cost of plots so reserved. Ther owner or developer or promoter has every right to sell the lands for residential purpose if no demand from any public departments is received within one year.”

32. Therefore, we are of the view that once land is earmarked for a park or playground, it cannot be converted to any other purpose, and any area earmarked for community purposes cannot be dealt with by the owner or developer except with due permission. It is also relevant to extract the relevant portion of the circular issued by the Director of Town and Country Planning Act which reads as follows:

                   “?19. It would be appropriate to extract the relevant portion of the circular issued by the 1st respondent dated 29.06.1984 in Roc.NO.9798/1983-BCC which reads as under:

                   “It has been decided in consultation with all the Regional Deputy Directors at the Officer's Meeting held at Coimbatore on 28.05.84 that in layouts which are of less than 10 acres in extent, 10% of such area should be reserved for open space only such as parks, play fields, etc., IN case of layout of more than 10 acres in extent, 50% of the total reservation made may be provided for public purposes like kalyana mandapam, community hall, reading room, library, etc. and the balance 50% may be reserved as open space.?”

                   20. Thereafter, a clarification was issued under circular in Roc.Ho.18150/85-01 dated 24.05.1985 by the Office of the Director of Town and Country Planning, Building Division, Chennai, which reads as under:

                   “?During the meeting of the Regional Deputy Directors held at Madras from 18.04.1985 to 20.04.1985, it was felt that the word “Reserved Lands” stipulated in the layout condition mentioned above requires exp-licit definition as the lands reserved in the layout would include parks, play fields, community halls, Kalyana Mandapam, etc., It was felt that it would be sufficient if areas reserved as open space like parks, play fields, children play space alone need be handed over to the Executive authority of the local body as they essentially belong to the category of non commercial public purposes. The other reservations like Kalyana Mandapam, Community Halls, etc., belongs to commercial category and it was felt that the layout owner should not be deprived of income which, he may likely to get by disposal of these plots as he has to surrender to the Executive Authority of the local Body a sizeable amount of land by way of non-commercial open spaces, instructions have already been issued in this office circular that in layouts which are of less than 10 acres in extent, 10% of such area should be reserved only for open spaces such as parks, play fields, etc. In cases of layouts of more than 10 acres in extent, 50% of the total reservation made may be provided for public purpose like kalyana mandapam, Community Hall, reading room, library, etc., and the balance 50% may be reserved as open space.”

33. The above circular also makes it clear that the said area is saleable, subject to the restriction that the purchaser shall not change the public purpose for which the land was reserved. Later, the appellant company sought to shift Sector IIIA and Sector IIIB to construct a residential building in Sector IA. The said plan was approved by the authorities vide proceedings dated 19.09.2003. Again the appellant company sought to convert the area to put up health care centre from the place originally earmarked for community purpose. The plan was approved vide proceedings dated 22.10.2003. Later, a revised plan was also approved on 27.03.2006, wherein permission was granted for the construction of residential plots.

34. It is relevant to note that the permission was granted by the authorities, and as already indicated, it is not a layout plan approval. It is only a plan sanctioned for group housing. As per G.O. Ms. No. 130, the authorities also considered the request and, taking note of the fact that the open space area was being maintained, granted permission. Therefore, as long as the open space area is not disturbed and is maintained, and the width of the road is also maintained as admitted by the authorities and the Corporation, it cannot now be contended that the permission granted by the authorities is void and liable to be set aside. It is relevant to note that even assuming the order to be void, a challenge to it ought to have been made, which has not been done. Therefore, as long as there is no conversion of the park area, open space, and road, and more than 10% is still being maintained as lung space, the learned Single Judge’s decision allowing the writ petition, applying the rule meant for industrial purposes, in our view, is not proper.

35. Further, the sale agreement entered between the first respondent and the builder's agreement shows that only 450 sq. ft of land in R.S.No.22/2A part of Madakkulam Village, Madurai South Taluk in Madurai District, with common pathway rights and usual easements in all internal access ways laid out in all Sectors in the total site have been purchased. Admittedly, all common pathway rights and usual easements in all internal access ways were kept intact. As per the counter of the Corporation, which is also not in dispute. Therefore, we are of the view that merely because the original plan of the year 2003 was referred to in the agreement, it cannot be said that the association was entitled to any benefits other than those purchased by them. Be that as it may, in any event, the open space area is being well maintained. Therefore, the park area annexed to the old building, in our view, should be maintained as open space without any further conversion.

36. From the judgments cited by the learned counsel appearing for the respondents, it is evident that the settled position of law is that lands earmarked as parks and open spaces cannot be put to any other use, and the Government authorities have no power to declassify the same. There is absolutely no dispute with regard to the judgments relied upon by the respondents. However, the fact remains that, in the present case, the open space earmarked for the group housing scheme continues to be maintained as such, and only the saleable interest retained by the developers was permitted to be sold.

37. Fact remains that the plan has been sanctioned for group development, and the authorities later permitted modifications, which have not been challenged. Further, the lung space is still being maintained, and there is no deviation in the lung space. What has been sold is only a saleable interest. Hence, even though the park is annexed to the old bungalow, the park area should continue to be maintained as such.

38. In view of the above discussions, we are of the view that the order of the learned single Judge is liable to be set aside. Accordingly, the order of the learned Single Judge is set aside and the Writ Appeals are allowed. Consequently, connected miscellaneous petitions are closed. There shall be no order as to costs.

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