(Prayer: This Petition filed under Article 226 of the Constitution of India, to issue a Writ of Certiorarified Mandamus calling for the records pertaining to the impugned proceedings issued by the first respondent in his proceedings in Na.Ka.No.17741/2024/TCP-10 dated 18.10.2024 quash the same and consequently to direct the first respondent to reclassify the land from car parking to residential plot in T.S.No.54/1, Kattalaipatti Village, Sivakasi Viruthunagar District on the basis of the petitioner's application dated 12.08.2024.)

1. The present writ petition has been filed challenging the order of the first respondent dated 18.10.2024 wherein the request of the writ petitioner to reclassify the land from car parking to residential plot in T.S.No.54/1, Kattalaipatti Village, Sivakasi, Virudhunagar District has been rejected.

(A).Factual Matrix:

2. One Annamalai Prasad who was the original owner of Town Survey No.54/1, created a layout in the year 2004 and an approval was granted to the said layout on 15.09.2004 by the second respondent. As per the layout approval, there are 7 plots and one of the plots having an extent of 2080 sq.ft was reserved for car parking. The approval order specifically points out that all the plots were meant for commercial purposes. Therefore, it is clear that the plots reserved for car parking was meant for visitors/customers to the other commercial plots where the constructions are going to come up.

3. The petitioner had approached the local body, namely Sivakasi Municipality and sought building plan permission. Before execution of sale deed in favour of the petitioner, the developer had approached the Sivakasi Municipality and obtained a No Objection Certificate for registration of sale deed. The No objection Certificate was granted with a condition that the plot should be used only for the purposes of parking vehicles. The developer had sold the plot reserved for car parking to the writ petitioner under a registered document dated 17.12.2007 under Document No.7233/2007.

4. The adjacent plot owners have filed O.S.No.285 of 2005 before the District Munsif Court, Sivakasi seeking a declaration that the suit property is a parking area and also sought for permanent injunction. The suit came to be decreed on 26.10.2010 and the developer had preferred A.S.No.35 of 2012 before the Subordinate Court, Sivakasi. Pending appeal, the parties have entered into a compromise wherein it was agreed between the parties that the decree of the trial Court may be set aside and the plaintiff would not have any objection for putting up construction in the plot earmarked for car parking. Though the Commissioner, Sivakasi Municipality and the Regional Deputy Director of Town and Country Planning were parties, they have not entered into compromise.

5. Armed with compromise, the petitioner had approached the Director of Town and Country Planning on 01.02.2012 seeking reclassification of the land from “car parking” area to “residential use”. This request was rejected citing pendency of A.S.No.35 of 2012 before the Sub Court, Sivakasi. Ultimately, the order impugned in the writ petition came to be passed by the Director of Town and Country Planning on 18.10.2024 wherein the request of the writ petitioner for reclassification was rejected relying upon the Government communication dated 29.06.2015. As per the impugned order, the parking area falls within the non-saleable public purpose reservation and therefore, it cannot be reclassified. It further pointed out that the parking area covered 10.17% of the total extent of the layout. This order is put to challenge in the present writ petition.

(B).Submissions of the learned counsels appearing on either side:

6. The learned Senior Counsel appearing for the petitioner submitted that all the 7 plots, earmarked for commercial purposes, have been put to residential use. There is no commercial activities at all within the layout premises. All the residents have created a car parking within their own plots. In such circumstances, nobody is using the plot earmarked for parking purpose for more than 5 years. In such circumstances, the plot reserved for parking area was sold by the developer to the writ petitioner. None of the private respondents would be put to any prejudice because of the conversion/reclassification.

7. The learned senior counsel had further submitted that the Government Order dated 29.06.2015 has been misread by the authorities while passing the impugned order. There is a reference only for selling the non-saleable public purpose reservation area like OSR, parks, play grounds etc., which are gifted to the local body and maintained as public trust. However, the plots reserved for parking would clearly fall within the saleable commercial space and therefore, there cannot be any legal impediment for reclassifying the same for residential purpose in view of the fact it has become a commercial non-saleable area.

8. The learned Senior Counsel appearing for the petitioner had further submitted that the entire layout is only having an extent of 1899.73 sq.m. which does not require any OSR reservation. Therefore, even assuming that the parking area is considered to be part of OSR, it was not reserved as parking space on the basis of any statutory mandate. It was voluntarily reserved by the developer as a parking space as all the 7 plots would be utilized for commercial purposes. When there is no statutory mandate whatsoever for reserving 10% of the total area as OSR, voluntary reservation of such a plot would not be a legal impediment for the authorities to grant reclassification.

9. The learned Senior Counsel had further submitted that as far as plot reserved for parking in the approved layout is concerned, so far no gift deed has been executed by the developer vesting the same with the local body. It has always continued to remain as a private property. He had further submitted that Sivakasi Town is a commercial area and several parking facilities are available. The learned counsel had further submitted that since there is no commercial building whatsoever within the layout, public interest would not be prejudiced. Therefore, the order impugned in the writ petition is liable to be set aside on the sole ground that the authorities has erroneously branded the parking area as a non-saleable public reservation.

10. Per contra, the learned Government Advocate appearing for the respondents by relying upon the various statutory Rules and the Government Orders submitted that the developer has earmarked 10% of the total area as a parking space. The approval to the layout was granted only on the said condition. There is no provision for any reclassification or conversion of the parking area into a residential area. Even assuming that some of the commercial plots have been converted into residential houses that will not in any way help the writ petitioner in getting conversion from parking space to residential house. He had further submitted that as against the order impugned in the writ petition, an appeal would lie to the Government under Section 79 of Tamil Nadu Town and Country Planning Act. Only the private parties have entered into a compromise before the civil Court behind the back of the statutory authority. Therefore, such a compromise cannot be relied upon by the writ petitioner to seek reclassification.

11. The learned counsel appearing for the private respondents had relied upon a judgment of this Court reported in 2011 (1) CTC 257 (K.Rajamani and others Vs. Alamunagar Residents' Welfare Association and others) and a judgment of the Hon'ble Supreme Court reported in 2023 LL (SC) 105 ( Association of Vasanth Apartments' Owners Vs. V.Gopinath and others) and contended that such a conversion is not permissible under law. He had further submitted that as per Rule 47, such a reclassification or conversion is provided under the Rules only prior to the grant of approval. Once approval is granted, the same cannot be reclassified. He had further submitted that considering the fact that all the 7 plots are meant for commercial purposes, under the direction of the authorities, one of the plots has been reserved as parking area. Therefore, parking area is meant for the benefit of all the 7 owners of the layout. In such circumstances, the developer cannot alienate the parking area in favour of the writ petitioner treating it to be his absolute property. Hence, he prayed for dismissal of the writ petition.

12. I have considered the submissions made on either side and perused the material records.

(C).Discussion:

13. A perusal of the layout approval granted by the second respondent on 15.09.2004 clearly reveals that the plot which is allotted on east of Plot No.7 with a measurement of 2080 sq.ft (10.17%) has been reserved for parking. It further reveals that all the 7 plots are meant for commercial purposes. Therefore, it is clear that this reservation of particular plot for parking has been mandated by the authority only taking into consideration the convenience of the customers/visitors who are likely to visit the buildings that are proposed to be put out in the layout area.

14. The learned Senior Counsel appearing for the petitioner had contended that the parking area cannot be considered to be a non-saleable OSR area, especially in view of the fact that such a reservation was made without any mandate under the statute. Therefore, it clearly falls within the saleable commercial space and it has been rightly sold by the developer to the writ petitioner.

15. It should be noted that the parking area cannot be considered to be a saleable commercial place. It is meant for the convenience of all the plot owners in a particular layout. If this parking area is treated as a saleable commercial plot, it would defeat the very purpose of reserving the area for parking. Therefore, such a contention is liable to be rejected.

16. The petitioner has purchased this plot knowing fully well that it has been reserved for parking. The developer has approached the Municipality seeking No Objection Certificate for registering the sale deed. At the time of granting NOC, it has been specifically pointed out that it has to be used only for parking purpose. The Building Plan Approval obtained by the writ petitioner clearly reveals that he had obtained a building plan on 29.06.2018 only with a condition that the entire ground floor would be used as parking space and the first floor would be used as a office room. There is no indication of any living room, bed room or kitchen. Therefore, it is clear that the petitioner has obtained the Building Plan Approval as if he is going to maintain it as a parking area. However, the photographs now produced would clearly show that a full-fledged residential building has been put up with a compound wall and a gate. Therefore, it is clear that the plot is not available for access to any one of the other plot owners in the layout area.

17. The learned Senior Counsel appearing for the petitioner had further contended that all the 7 plots have already been converted into residential houses and therefore, there is no necessity to maintain the disputed plot as a parking area. The illegality committed by the other plot owners cannot be taken advantage of the writ petitioner to convert a parking area into a residential house. Such a contention is liable to be rejected.

18. Even assuming that the reservation of parking area has not been legally mandated, as per Regulation, once the developer has reserved as a particular plot as parking area and has sold the other plots showing the disputed plot as a parking area, cannot thereafter turn around and contend that the layout does not require a parking area space and there is no mandate for reserving a plot for parking purpose. A plot reserved for parking area is like a park or a playground which cannot be alienated for commercial purpose. It has to be retained only as a open space providing access to all the plot owners of the concerned layout. Therefore, the contention of the learned Senior Counsel appearing for the writ petitioner that it is not a OSR land and therefore, it can be alienated cannot be countenanced.

19. A perusal of the impugned order reveals that the authorities had relied upon a letter issued by the Government on 29.06.2015 to reject the request of the petitioner. The said Government Letter clearly points out that only the saleable public purpose places can be permitted to be converted for any other purpose especially when they are lying vacant for at least 5 years from the date of planning permission. As already pointed out by this Court, a parking area cannot be detached from the entire layout and it cannot be sold in isolation. It is part and parcel of the layout and forms part of the amenities available to all the plot owners. In such circumstances, the authorities cannot be found fault with for relying upon the said Government Order dated 29.06.2015 to arrive at a findings that the plot in dispute is a non-saleable plot.

(D).Conclusion:

20. In view of the above said deliberations, there are no merits in the writ petition and the writ petition stands dismissed. No costs. Consequently, connected miscellaneous petitions are closed.