(Prayer: This Petition filed under Article 226 of the Constitution of India, to issue a Writ of Mandamus directing the respondents 4 and 5 to remove the notice board erected in the petitioner's land in Town Survey Number 43, Block -30, Ward 'C' Sinnamani Nagar, Thoothukudi to an extent of 19140 sq.ft and consequentially forbearing the respondents 4 and 5 from interfering the possession and enjoyment of the petitioner in the above said property.)

1. The present writ petition has been filed seeking a mandamus directing the respondents 4 and 5 to remove the notice board erected in the petitioner's land in Town Survey Number 43, Block -30, Ward 'C' Sinnamani Nagar, Thoothukudi to an extent of 19140 sq.ft and consequentially forbearing the respondents 4 and 5 from interfering with the possession and enjoyment of the petitioner in the above said property.

(A).Factual Background

2. According to the averments in the writ affidavit, T.S.No.43 was purchased by Tuticorin Spinning Mill Limited for the purpose of benefit of the workers of the said mill. In order to achieve the above object, a society, the Tuticorin Spinning Mill Limited Employees' Co-operative Housing Society Limited was formed and a layout was prepared and approved by the first respondent in the year 1966. In the said layout approval, lands were earmarked for public purpose, community centre and park. In the said approval, a portion of the land was earmarked for future development. As per approved layout, the house plots were allotted to its members.

3. It is further contended that the land that was reserved for future development in the approved plan of the year 1966 was again modified and a layout was prepared for additional house sites. In the year 1983, another modification of the layout was prepared and it was also approved. An extent of 19140 sq.ft was kept as vacant land and earmarked as building restricted area (common open place).

4. According to the petitioner, this area was earmarked as Building Restricted Area on the ground that a high tension wire was crossing through the said locality. It is further contended in the affidavit that the petitioner being one of the members of the Society, the said land was conveyed to him on 29.10.1999 and he had executed a settlement deed in favour of his wife and it has been re-conveyed to him in the year 2007. It is further contended that patta stands in the name of the petitioner. In the writ affidavit it is further stated that on 16.05.2025, the respondents 4 and 5 have erected a notice board inside the fencing area to the effect that the property belongs to the Corporation and action would be initiated as against any individual if they violate. Hence, the present writ petition.

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

5. According to the learned counsel for the writ petitioner, the Corporation has no right whatsoever over the land. More than 10% of the land has already been earmarked for public purpose in the first layout approval of the year 1966 itself. Only in the area that was reserved for future development, later the plots were created in the year 1982 and 1983 which were approved by the concerned authorities. Therefore, no land was reserved for public purpose. Therefore, the property in dispute is not reserved for public purpose which could vest in the respondent Corporation.

6. The present writ petition has been filed seeking to remove the notice board put up by the Corporation officials namely respondents 4 and 5.

7. The fourth respondent has filed a counter contending that in the year 1966, a layout was approved for 126 plots and 10% of the land in the layout is reserved for common amenities like playground, park etc., and 10% of the land is maintained by the Corporation in the interest of the general public. It is further contended that in the year 1982, the society got approval for the remaining land which was reserved for future purpose and an amended layout approval was issued in the year 1983 for additional 15 plots in additional to 126 plots which are already in existence.

8. The fourth respondent had further contended that T.S.No.43 which is a plot on the western side of the layout was declared as restricted area for construction and it is a open space reservation area. There is an electricity board transformer is in existence and there is no burial ground nearby as of now. It is further contended that the writ petitioner claims exclusive right over 19140 sq.ft which has been earmarked as building restricted area. In Paragraph No.7 of the counter affidavit, it is stated that the land that was reserved for public purpose and T.S.No.43 is under the control of the corporation, even though it is not gifted to the corporation by the layout promoter cum land owner. It is further contended that the said public purpose area cannot be alienated or purchased by anyone.

9. In the counter affidavit, it is further contended that as per Rule 18 of Tamil Nadu Panchayat Building Rules, an open space for common public use as park, playground or recreation ground to an extent not less than 10% of the total area of layout shall be provided as a minimum standard of common amenities. It is further contended that as per Rule 41 of Tamil Nadu Combined Development and Building Rules 2019, it is mandatory to reserve land for community recreational purposes. Only in order to protect the land from any encroachments, the Corporation had installed notice board. It is further contended that the land acquisition as per Section 38 of Town and Country Planning Act is not applicable to the facts and circumstances of this case. Therefore, the Corporation has not acquired the land since it is not a place required, reserved or designated in a master plan or detailed development plan.

10. It is further contended in the counter affidavit that the land reserved for public purpose as open space reservation has been earmarked as per Section 49 of the Tamil Nadu Town and Country Planning Act. Only on the basis of the open space reservation of not less than 10% of the total approval has been granted by the respondents 1 and 2 in the layout. The petitioner having accepted the layout approval order, cannot controvert the same. He cannot approbate and reprobate. Once the petitioner has accepted the layout approval, thereafter he cannot contend that it is his private property. Hence, the respondents have prayed for dismissal of the writ petition.

11. The learned counsel for the petitioner had relied upon the Hon'ble Division Bench order of our High Court in W.P.No.16259 of 2023 (G.S.Senthilkumar Vs.The Commissioner, Coimbatore Corporation and others) dated 28.03.2024 and contended that the open space or the space reserved for public purpose may not vest with the planning authority unless a registered instrument is executed.

12. The petitioner has also filed an undertaking affidavit before this Court wherein in Paragraph No.4, an undertaking has been given that he will not put up any construction in the property measuring an extent of 19140 sq.ft in T.S.No.43 and he will maintain it as open space. The undertaking affidavit further reflects that he will not convert the nature of classification or put up any construction in the future.

13. Heard the learned counsels appearing on either side and perused the material records.

(C).Discussion:

14. A layout approval has been granted by the respondents 1 and 2 initially in the year 1966 for 126 plots. In the said layout approval, T.S.No.43 has been reserved for future development. In the said layout approval, 10% of the land has been reserved for common amenities like playground, park and community centre. It is not in dispute that these earmarked portions are under the possession of the respondent Corporation and the petitioner has not made any claim to these areas.

15. In the year 1982, the area which was reserved for future development was again plotted out and 15 new plots were created. In the said layout approval of the year 1982, the area which is in dispute now is shown as 'Construction Prohibited Area' and there is no reference about open space reservation and the said approval was amended in the year 1983. In the said amended approved plan, the area in dispute is reflected as Construction Prohibited Area (common open space). At the time of amendment of the layout approval, apart from earmarking it as a building restriction area, it has been stated that it is a common open space.

16. According to the learned counsel for the writ petitioner, this building restriction was imposed only due to the existence of high tension electrical line in the said locality and it was not reserved for any public purpose. The respondents in Paragraph No.6 of the counter have pointed out that there is an electricity transformer in T.S.No.43 namely the area which is earmarked as building restricted zone. In fact, the plan of the year 1983 clearly mentions the existence of high tension electrical wire. Therefore, it is clear that classification of T.S.No.43 as building restriction area is mainly on the ground that the high tension electrical line were passing through the said land and the electrical transformer was available.

17. Even as per Paragraph No.7 of the counter affidavit, the said land has not yet been gifted in favour of the respondent corporation. When already open space reservation, park and community hall are available even in the year 1966 plan and in 1982 plan, the respondent corporation has not made it clear whether the present area in dispute namely an extent of 19140 sq.ft falls within the open space reservation or not, especially in the light of the fact that it is mentioned only as a building restricted zone.

18. The petitioner has filed an undertaking affidavit. Paragraph No.4 of the said affidavit is extracted as follows:

                   “4.I respectfully state that I hereby undertake that I will not put up any construction in the property measuring an extent of 19140 sq.ft in T.S.No.43, Block 30, Ward c, Sinnamani Nagar, Thoothukudi and I will maintain it as open space. I will not convert the nature of classification or put up any construction in the future. This Hon'ble Court may be pleased to record my undertaking and allow the above writ petition.”

19. The Hon'ble Division Bench of our High Court in a judgment rendered in W.P.No.16259 of 2023 dated 28.03.2024 ( G.S.Senthilkumar Vs. The Commissioner, Coimbatore Corporation and others) in Paragraph No.5 has held as follows:

                   “5.The open space and /or the spaces reserved for public purpose in a layout may not entirely vest with the planning authority unless a registered instrument is executed. However, at the same time, the site reserved for public purpose also cannot be used for any other purpose than for what it has been reserved.”

20. In view of the judgment of the Hon'ble First Bench, it is clear that unless a gift deed is executed in favour of the concerned local body, the space reserved for public purpose in a layout does not vest with the authority concerned. However, the place reserved for public purpose cannot be used for any other purpose.

21. In the present case, the place earmarked for public purpose, park and community hall are already under the control of the respondent corporation. The area which is in dispute which is earmarked as “construction restricted area” cannot be said to be vested with the corporation automatically especially in the light of the fact that so far the gift deed has not been executed. In such circumstances, this Court is of the considered opinion that the Corporation cannot put up a notice board to the effect that the said area belongs to them and others cannot make a claim over the said property.

(D).Discussion:

22. In the light of the undertaking affidavit filed on behalf of the writ petitioner, this Court is inclined to pass the following orders.

                   a)The respondent 4 and 5 are directed to remove the notice board erected by them in T.S.No.43, Block-30, Ward 'C' Sinnamani Nagar, Thoothukudi to an extent of 19140 sq.ft.

                   b)The petitioner shall not put up any construction in the above said property.

                   c)The petitioner shall always maintain the same as an open space in future.

23. With the above said observations, this writ petition is allowed to the extent as stated above. No costs. Consequently, connected miscellaneous petitions are closed.