Prayer: Appeals filed under Clause 15 of the Letters Patent, against the order dated 4.1.2010 made in W.P Nos. 25371 of 2002 and 23980 of 2005.
JUDGMENT
D. Murugesan, J.
1. The Appellants in both the Writ Appeals question the common order dated 4.1.2010 passed in W.P Nos. 23980 of 2005 and 25371 of 2002. W.P No. 23980 of 2005 was filed by Alumunagar Residents' Welfare Association, Coimbatore questioning the G.O(R) No. 80, Municipal Administration and Water Supply (MW-1) Department, dated 15.2.2005 according permission to change the usage of land from public purpose to housing plots in respect of the land situate in Survey No. 1279, Alamunagar, Coimbatore purchased by the Appellants herein to an extent of 4250 sq.ft, 3200 sq.ft, and 3406 sq.ft respectively. The Association also questioned the direction of the Government to change the usage of land from public purpose in Survey No. 1278 of the very same layout and the further direction to the Commissioner of Town and Country Planning to take action to make necessary amendments in the layout.
2. W.P No. 25371 of 2002 was filed by the Appellants themselves questioning the Resolution No. 2369 dated 27.11.2005 passed by the Commissioner of Coimbatore City Municipal Corporation resolving under Section 432(10)(b) of the Coimbatore City Municipal Corporation Act to take over an extent of 20,973 sq.ft, of land in Town Survey No. 1278 of Alumunagar. The learned Judge, after a detailed discussion, allowed W.P No. 23980 of 2005 and dismissed W.P No. 25371 of 2002. Hence, the present Writ Appeals.
3. Alumunagar on the Sathyamangalam Road of Coimbatore was formed in the year 1983. A layout was approved by the Deputy Director, Local Planning Authority as well as the Commissioner, Coimbatore City Municipal Corporation in L.P.R(C) No. 22 of 1983. The layout was in respect of the land situate in T.S No. 1278 part to a total extent of 2.428 hectares, approximately equivalent to six acres of land. The layout provided for 54 plots and an area of about 51 cents (20,973 sq.ft approx.) in the northern portion of the layout was left for public purpose, namely, to establish a park and to maintain certain wells. On the basis of the approved layout, 54 plots have been sold to various individuals and the land earmarked for public purpose was kept open. The Appellants had purchased certain extent of land individually in Survey No. 1278 in the layout in Alumunagar and put up constructions. The Commissioner, Coimbatore City Municipal Corporation issued notices under Section 296(3) for demolition. The action of the Municipal Corporation was questioned by the Appellants in W.P No. 14327 of 1995 and were unsuccessful. The Writ Appeal preferred by them was also dismissed for default on 3.4.2008 In the meantime, the Appellants approached the Government for re-classification of the land and the same was rejected in G.O.Ms No. 231, Municipal Administration and Water Supply Department dated 26.6.2002 This order was not questioned by the Appellants. Thereafter, the Appellants once again made a further request by letter dated 14.2.2005 for change in the usage of land from public purpose to housing plot through their Power of Attorney. That request was considered and accepted by the Government in G.O(R) No. 80 dated 15.2.2005 Apparently, the Government took note of the resolution of the Municipal Corporation dated 27.11.1995, whereby the Municipal Corporation resolved to take over the land for maintaining park, etc., which was questioned by the Appellants in W.P No. 25371 of 2002.
4. On a challenge to the above Government Order by the Residents' Association, the learned Judge found that the open space reserved for public purpose cannot be altered and with that reason, the learned Judge held that the Government Order should be quashed. So far as the challenge to the resolution of the Municipal Corporation by the Appellants, the learned Judge found that the Corporation could only be the custodian of the reserved space in order to maintain the same for the benefit of the society in general and with that reason, the learned Judge directed the Municipal Corporation to be the custodian of the open space as a park.
5. In challenging the order of the learned Judge holding that the Municipal Corporation should be the custodian and should maintain the open space on the ground that any land required, reserved or designated for public purpose shall be deemed to be the land for public purpose, Mr. K.M Vijayan, learned Senior Counsel for the Appellants would submit that the said finding is contrary to law and if the said finding is accepted, the procedure of the Land Acquisition Act to be followed to acquire the land as contemplated under Sections 36 and 37 of the Tamil Nadu Town and Country Planning Act, 1971 (hereinafter referred to as the Planning Act) will be of no significance. He would further submit that unless the authorities acquire the land under the provisions of the Land Acquisition Act, question of transfer of the land to the Municipal Corporation for public purpose does not arise and the ownership of the land shall continue to vest with the owner. He would also submit that in terms of sub-section (2) of Section 37 of the Planning Act, a declaration under Section 6 of the Land Acquisition Act covered by the notice under Sections 26 and 27 of the Planning Act should be made within a period of three years from the date of such notice. In terms of Section 38 of the Planning Act, if no declaration is published within the above time limit of three years in respect of the land reserved, allotted or designated for public purpose as specified in the original plan, master plan, detailed development plan or new town development plan, such land shall be deemed to be released from such reservation, allotment or designation. Hence, the learned Senior Counsel would submit that in the absence of compliance of the above provisions, the resolution is illegal and is in excess of jurisdiction. He would further submit that the provisions of Section 432(10)(b) of the Coimbatore City Municipal Corporation Act do not empower the Corporation to declare a private land as the property of the Corporation and for that reason, the resolution is bad.
6. The further contention of the learned Senior Counsel is that a citizen cannot be deprived of the right to his property by the State without following the procedure laid down under the “Planning Act”. Hence the learned Senior Counsel would submit that as the land belongs to the Appellants, they have every right to approach the Government for re-classification and the Government having rightly exercised its power, the same cannot be questioned by the purchasers of the plots who have no other right over the land earmarked for public purpose except to the extent of land purchased by them. He would submit that as against the open space earmarked for public purpose in the apartments, where the purchaser of the apartment would have an undivided share in the open space as well, such right will not be available to them in the case of a layout. Hence the Residents' Association cannot question the order of the Government directing the change in the usage of the land.
7. Mr. M. Dhandapani, learned Special Government Pleader appearing for the Respondent-State would submit that as the Government has the power to alter, amend or change the use of the land under the provisions of the Tamil Nadu Town and Country Planning Act, the Government Order directing the change in the use of the land is well within such power and cannot be questioned by the Association. The learned Special Government Pleader would further submit that the decision of the Government is also binding on the Municipal Corporation.
8. Mr. R. Sivakumar, learned Counsel appearing for the Municipal Corporation, however, would submit that the land earmarked for public space cannot be altered for any other purpose. He would further submit that for the said reason, when the Appellants had put up constructions, action was taken requiring the Appellants to demolish the constructed portion and notices were issued under Section 296(3) of the Coimbatore City Municipal Corporation Act and those notices have been questioned by the Appellants unsuccessfully. Hence, they have no right even to apply to the Government for re-classification. He would also submit that when an open space is earmarked for public purpose, namely, for formation of park and maintenance of the same, that land shall automatically vest in the Municipal Corporation for such purpose. The Appellants being the purchasers of the land earmarked for public purpose cannot oppose the resolution of the Municipal Corporation for taking over possession of the land. The learned Counsel would, therefore, submit that the order in the Writ Petitions requires no interference, as the learned Judge has only directed the Municipal Corporation to be the custodian of the land earmarked for public purpose and to maintain the same.
9. Mr. G. Rajagopalan, learned Senior Counsel appearing for the Alumunagar Residents Welfare Association would submit that once the layout has been sanctioned subject to certain conditions, particularly with reference to reserving certain extent of land for public purpose, the Government has no authority to re-classify the land. He would submit that as the land reserved for public purpose cannot be put to use for any other purpose, the order of the Government has been rightly interfered by the learned Judge. He would submit that the finding of the learned Judge with regard to the right of the Municipal Corporation to be the custodian of the land earmarked for public purpose in the layout for the purpose of maintaining the same requires no interference. He would also submit that once the challenge was already rejected, there is no question of review of the same.
10. We have carefully considered the above submissions. The following questions arise for our consideration:
(i) Whether the Government would have power to order de-reservation of a land reserved for public purpose in a layout for use of other purpose?
(ii) Whether the open space earmarked in a layout for use of park, etc., could be allowed to be put in use for any other purpose?
(iii) Whether the provisions of the Land Acquisition Act are to be followed for acquiring that land with reference to the provisions of Section 36 of the Planning Act?
(iv) Whether the open space earmarked in a layout could be considered to be the property of the Municipal Corporation either in the absence of any declaration under Section 37 or in the absence of any gift by the owner?
11. Point No.(i): Before we delve upon the provisions of the Tamil Nadu Town and Country Planning Act, 1971, we may briefly refer to the object behind the enactment. Green space is an essential feature in any development, as it not only serves as lung space but also meets the communal and recreational requirements of the inhabitants. The reserved space is primarily meant for the use of the occupants in any development. The residents or purchasers of the plots are also obligated to maintain the same as reserved space, namely, park, etc. Conservation of such open space becomes more required, as the lands in cities become more scarce, population increase and infrastructure strain stimulate inhabitants demands. Open space element is also a part of general development. In that sense, land use planning is a process by which the land is allocated to secure the rational and orderly development of land in an environmentally sound manner to ensure the creation of sustainable human settlements. The development control function cannot and should not operate in a vacuum. The process of land use planning primarily consists of the two twin functions of the development/land use planning and development control.
12. With the above object in mind, the Tamil Nadu Town and Country Planning Act, 1971 (hereinafter referred to as “the Planning Act”) was enacted to regulate the development of towns so as to secure to its present and future inhabitants, sanitary conditions, amenity and convenience as to the use of layout and use of lands. The Act covers both the manner in which the development/land use planning should be made and how the development should be controlled. Thereafter, keeping in mind the eco-expansion, certain amendments were made in the year 2002. In order to decide as to whether the Government would have power to de-reserve an open space earmarked for the use of public, certain provisions of the Planning Act are relevant to be referred. By the provisions of Section 3, appointments of the Director of Town and Country Planning and other officers are contemplated. By the provisions of Section 4(i) the Regional Planning Authority; (ii) the Local Planning Authority; and (iii) the new Town Development Authority were constituted. The Tamil Nadu Town and Country Planning Board consisting of high level Secretaries of various Departments, apart from the Minister in-charge of Local Administration, was also provided. The Board was empowered to guide, direct and assist the planning authorities, advise in matters relating to planning, the development and use of rural and urban land in the State and to perform such other functions as the Government may from time to time assign to it. In addition to the above, the Board may also direct the preparation of development plans by Planning Authorities.
13. For the development of Chennai city, Section 9-A provides the establishment of the Chennai Metropolitan Development Authority with high ranking officials of the Government. Section 9-C of the Act relates to the functions and powers of the Chennai Metropolitan Development Authority, particularly to carry out the survey of the Chennai Metropolitan Planning Area and prepare a master plan or a detailed development plan or a new town development plan, etc. For the implementation of the development plans, the Government, in exercise of the power under Section 10, declares certain areas as regional planning areas, local planning areas and their amalgamation and sub-division and inclusion from other regions and local areas. Once the land is declared to be in the regional planning area, the Regional Planning Authority shall prepare and submit a regional plan for the regional planning area or any part of it. That plan would contain the manner in which the land in the region shall be used, be it residential, industrial, commercial, agricultural and recreational purposes or as a forest area, for mineral exploitation, transport and communication, water supply, drainage, sewerage, etc., demarcation, conservation and development of areas of natural scenic beauty, forest, wildlife, natural resources and landscaping and so on. Likewise, after the declaration of local planning area under Section 10, the Local Planning Authority, after consultation with the Regional Planning Authority and the local authorities concerned, shall prepare and submit to the Government a master plan for local planning area or any part of it. The master plan may propose and provide, among other things, the manner in which the land in the planning area shall be used, the allotment of reservation of land for residential, commercial, industrial and agricultural purposes and for parks, play-fields and open spaces and for other amenities. Likewise, after the declaration, the new Town Development Authority shall prepare a new town development plan after consultation with the Director and submit to the Government the new town development plan. By the above provision, it could be seen that when the Government decides to develop a particular area of land in urban or rural area, it should make a declaration in this regard by a Notification in terms of Section 10.
14. The provisions of sub-section (2) of Section 10 specify the development objectives that must be included in the plan. In addition to the provisions contained in Part-V of the Act (Amended by 2002 Act), the development plan shall include a housing strategy for the area of the plan. The objectives specified in Section 10 together with the housing strategy are mandatory requirements. Section 10(2)(a) of the 2002 Act requires that a development plan shall include the demarcation of land and particular area for the use solely or primarily for particular purposes, be it residential, commercial, industrial, agricultural, recreational (be it open space or otherwise or a mixture of these uses) and to such extent as the proper planning and sustainable development of the area as in the opinion of the Planning Authority necessary. The plan could be thereafter approved by the Government in terms of Section 26 of the Planning Act. On the basis of such declaration, once a regional plan, master plan or new town development plan is approved, the Government is competent to vary, revoke or modify such regional plan, master plan and new town development plan under Section 32 of the Act. After the above approval of the Government under Section 28, subject to variation, revocation and modification under Section 32, the Government can acquire those lands in terms of Section 36 of the Act. Once the plan is approved and the lands are acquired, the new Town Development Authority could dispose of the land to such person in such manner and subject to such terms and conditions in terms of Section 40. After such disposal, the land shall be put to use only in conformity with the development plan.
15. Chapter-III of the Planning Act with provisions of Sections 10 to 35 relates to the declaration of planning areas, preparation of development plans by Planning Authorities, approval of the Government to such development plan and power to vary, revoke or modify such approved plans. Chapter-IV of the Planning Act with the provisions of Sections 36 to 39 relates to the acquisition of land covered by the development plan by invoking the provisions of the Land Acquisition Act for being placed before the appropriate Local Planning Authority. That chapter also includes the release of land if not declared within three years of the Notification under Section 26/27 of the Planning Act. Chapter-V with the provisions of Sections 40 to 46 relates to the special provisions regarding new Town Development Authority. By that chapter, the land acquired under Chapter-IV is placed at the disposal of the new Town Planning Authority and related matters. Chapter-VI of the Planning Act with the provisions of Sections 47 to 58 relates to the control of development and use of land. The Planning Authority shall either grant permission subject to the provisions of the Development Control Rules relating to the minimum requirement of open space for road and other purposes including open lung space for common use. There is clear demarcation of the provisions of constitution of Planning Authorities, submission of their proposal for regional plan, master plan and new town development plan to the Government, the acquisition of those lands vis-a-vis the power of the new Town Development Authority to grant permission for execution of work or construction on such land with such conditions. While the earlier part of the enactment relates to the development of a particular area in the regional plan, master plan or new town development plan, the latter part of the enactment relates to the usage of the developed area in conformity with the Development Control Rules.
16. A reading of the above provisions shows that if large extent of land is acquired by the Government on the basis of the proposal of the Regional Planning Authority and subsequently the master plan authority and new Town Development Authority for commercial, residential, industrial, etc., zone, those lands should not be put to use for any other purpose except to the extent of variation, revocation, modification under Section 32 of the Act. But once the land is acquired under Section 36 and is placed at the disposal of the new Town Development Authority for further disposal to such person, the proposal of the Regional Planning Authority for new town development and approved by the Government cannot be varied, revoked or modified by the Government.
17. For our purpose, the extent of land in a new town development area owned by a private person shall be used only in conformity with such development as provided under Section 47 of the Act. For such use, such person should apply to the appropriate Planning Authority for permission to erect any building or make or extend any excavation or carry out any mining or other operation, make any material change in the use of the land or construct, form or lay out any work. For that purpose, one should make an application for permission under Section 49. In terms of sub-section (2) of Section 49, the appropriate Planning Authority is required to consider the purpose for which the permission is required, the suitability of the place for such purpose and the future development and maintenance of the planning area. In terms of sub-section (3) of Section 49, the appropriate Planning Authority may also refuse to grant permission to any person, but by giving reasons thereof. Once the planning permission is granted, the appropriate Planning Authority would have power to either revoke or modify the permission granted in terms of Section 54 of the Act. Of course, there is a general power conferred on the Government under Section 90 of the Act to call for records, examine the same and pass orders after satisfying themselves as to the regularity of such proceedings or correctness, legality or propriety or any decision passed or made therein. This power would be available to the Government only in respect of either the permission granted or refused by the appropriate Planning Authority for a land to be put into use in a developed area. This power cannot be extended to the permission accorded by the Government for the purpose of approval granted by it in terms of Section 28 for regional plan, master plan or the new town development plan, as those plans could be varied, revoked or modified only under Section 32. In our considered view, such power cannot be extended to alter, revoke or modify the conditions imposed in the layout plan. In that view of the matter, we hold that once such permission is accorded and in that permission if a specified area is earmarked for public purpose, even the Planning Authority shall not have power to exempt that land for being put to use for any other purpose. In that context, the State Government also cannot have any jurisdiction to alter the conditions imposed in the layout, whereby certain lands are earmarked as open space to be used for public purposes.
18. The contention of Mr. K.M Vijayan, learned Senior Counsel for the Appellants is that the Government would have jurisdiction to de-reserve the open space in a layout. This argument is untenable, as the power of the Government to vary, revoke or modify a regional plan under Section 32 could be exercised before the lands are acquired under Section 36 and before the lands are placed at the disposal of the new Town Development Authority and not otherwise. Hence, the power of the Government to alter the conditions imposed in the layout is not available and that too, when the entire portion of the land is plotted out and sold to various parties leaving only the open space for public use. In this context, the judgment of the Apex Court in the case of Pillayarpatti Karpaga Vinayagar Koil Nagarathar Trust thru Ramanathan v. Karpaga Nagar Nala Urimai Sangam, rep. by Secretary and others, Civil Appeal Nos. 7305-7306 of 2010 dated 1.9.2010, was brought to our notice. In that case, the layout to an extent of 76.12 acres of land was prepared and approved with 910 plots by the town panchayat as per the Town Panchayat Building Rules. Later, Tallakulam Panchayat was merged with Madurai City Municipal Corporation during the year 1974 and the laws applicable to Madurai City Municipal Corporation were made applicable to Tallakulam Panchayat. Hence, the conversion Application for revalidation of the original plan was submitted to the Corporation. In that plan, 40 plots were shown as reserved for school. Thereafter, in the year 1979-80, the Local Planning Authority of Corporation prepared a detailed development plan including the lands covered in the said layout. In the said plan, the area relating to 40 plots was demarcated and shown as residential area. As there was difference in the classification in respect of 1975 plan and 1980 plan, the local Planning Authority cancelled the 1975 plan with a direction that the 1980 plan alone would be valid. However, fresh Application was submitted for putting up construction in Plot Nos. 276 and 369 and the same was rejected by the Corporation, which was questioned by the Applicant therein. The High Court by its order restored the Application in respect of Plot Nos. 276 and 369 and directed the Municipal Corporation to pass fresh orders. The High Court also held that the Application could be rejected only if the said area comprising of 40 plots was in the meantime classified as reserved for public purpose in the detailed development plan. Only in that context, the Apex Court went into the question of the power of the appropriate Planning Authority in directing the applicant to keep reserved area not exceeding ten percent of the layout for common purpose in addition to the area provided for roads, streets. In our opinion, the said judgment is not applicable to the facts of this case as, in the present case, the question as to the power of the Government to de-reserve the land which was earmarked for public purpose in the layout is involved. In that view of the matter, the contention of Mr. K.M Vijayan, learned Senior Counsel that the Government has power to de-reserve the land earmarked for public purpose to housing plots cannot be accepted. The learned Judge has rightly held that the Government has no power to de-reserve the open space and that finding requires no interference. Accordingly, we answer point No.(i).
19. Point No.(ii): This takes us to the next question as to whether the lands specified for public purpose and left open in the layout could be used for any other public purpose. The question as to whether a land specified for public purpose and left open in a layout could be used for any other purpose came up for consideration before the Apex Court as well as this Court and we have enough authorities on the subject. The Apex Court in Bangalore Medical Trust v. B.S Muddappa, 1991 (4) SCC 54, has held 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. A private nursing home on the other hand, is essentially a commercial venture, a profit oriented industry. Service may be its motto but earning is the objective. Its utility may not be undermined but a park is a necessity not a mere amenity. A private nursing home cannot be a substitute for a public park. No town planner would prepare a blueprint without reserving space for it. Emphasis on open air and greenery has multiplied and the city or town planning or development Acts of different States require even private house owners to leave open space in front and back for lawn and fresh air. In 1984 the B.D Act itself provided for reservation of not less than 15 percent of the total area of the layout in a development scheme for public parks and playgrounds the sale and disposition of which is prohibited under Section 38-A of the Act. Absence of open space and public park, in present day when urbanisation is on increase, rural exodus is on large scale and congested areas are coming up rapidly, may give rise to health hazard.”
The very same question came up for consideration again before the Apex Court in Pt. Chet Ram Vashist v. Municipal Corporation of Delhi, 1995 (1) SCC 47, wherein the Apex Court has held as follows:
“6. Reserving any site for any street, open space, park, school, etc. in a layout plan is normally a public purpose as it is inherent in such reservation that it shall be used by the public in general. The effect of such reservation is that the owner ceases to be a legal owner of the land in dispute and he holds the land for the benefit of the society or the public in general. It may result in creating an obligation in nature of trust and may preclude the owner from transferring or selling his interest in it. It may be true as held by the High Court that the interest which is left in the owner is a residuary interest which may be nothing more than a right to hold this land in trust for the specific purpose specified by the coloniser in the sanctioned layout plan. But the question is, does it entitle the Corporation to claim that the land so specified should be transferred to the authority free of cost. That is not made out from any provision in the Act or on any principle of law. The Corporation by virtue of the land specified as open space may get a right as a custodian of public interest to manage it in the interest of the society in general. But the right to manage as a local body is not the same thing as to claim transfer of the property to itself. The effect of transfer of the property is that the transferor ceases to be owner of it and the ownership stands transferred to the person in whose favour it is transferred. The resolution of the Committee to transfer land in the colony for park and school was an order for transfer without there being any sanction for the same in law.”
20. This Court has also ruled that the area reserved for public purpose cannot be altered to be put to use for any other purpose in the decision in Villupuram Municipality, represented by its Commissioner, Villupuram Municipality v. M. Subramanian, 2002 (5) CTC 729 : 2000 (3) MLJ 375. A Division Bench of this Court in Karpaga Nagar Nala Urimai Sangam, rep. by its Secretary, Shanmugavel v. Municipal Administration and Water Supply Department, rep. by its Secretary, Chennai and others, 2007 (4) MLJ 1006, after considering in detail the provisions of the Act, has held that the open space earmarked for public purpose cannot be altered. This Court has further held that the layout sanctioned by the Municipal Authority cannot be altered by the Government by issuance of a Government Order de-reserving such plots.
21. A survey of the above law shows that the land once earmarked for public purpose cannot be earmarked for any other purpose and, particularly, to de-reserve or put to use as housing plots. (See Krishna Nagar Residents' Welfare Association v. Director of Town and Country Planning, 2001 (3) LW 828.
22. The contention of Mr. K.M Vijayan, learned Senior Counsel for the Appellants is that the law relating to open space would be available only in case of apartments, where the purchaser of an apartment would have right to seek for maintenance of public space as such, as he/she has an undivided share in the open land as well and that law is not applicable to a layout. In our opinion, the said contention is totally on a misconception. The purpose for leaving open space is not only to meet the future developmental activity, but also to meet the recreational activity of the inhabitants. The provision of open space in a development plan is to provide green space as well which is an essential feature in the development of an area. In a layout leaving of certain area of land as open space for use of park is in conformity with the Development Control Rules. Hence, there cannot be a different yardstick as to the de-reservation of land left for open space in the case of an apartment and layout. Only in this context, the provisions of Section 432(10)(b) of the Coimbatore City Municipal Corporation Act relating to the power of the Municipal Corporation to make bye-laws in respect of protection of avenues, trees, grass, other appurtenances of public streets and other places was referred to by the learned Judge which, in our considered view, requires no interference. Hence, the learned Judge has rightly quashed the order of the Government in de-reserving the land earmarked for public purpose in the layout into housing plots and we are not inclined to interfere with the same. We answer the point No.(ii) accordingly.
23. Point Nos.(iii) & (iv): The next contention is as to whether in the absence of any proceedings under the Land Acquisition Act, the Municipal Corporation can claim a right over the property. The contention of Mr. K.M Vijayan, learned Senior Counsel is that after the land is deemed to be the land needed for public purpose within the meaning of Land Acquisition Act in terms of Section 36, a declaration in this regard should be made under Section 37. In the event no declaration is made within a period of three years after the publication of notice in the Gazette as to the preparation of regional plan, master plan or the new town development plan, as the case may be, the land shall be deemed to be released from such reservation, allotment or designation under Section 38 of the Planning Act. In terms of Section 26, notice of preparation of regional plan, master plan or the new town development plan should be published in the Government Gazette after the appropriate Planning Authority had received the consent of the Government under sub-section (2) of Section 24. Thereafter, the Government is competent to acquire the land under the provisions of the Land Acquisition Act as contemplated under Section 36 and for that purpose, a notice shall be also published in the Tamil Nadu Government Gazette under Section 37. In the event such notice is not made within a period of three years from the publication of notice under Section 26 or 27, the land shall be deemed to be released from such reservation, allotment or designation. This contention would be available to a land owner before he/she makes an Application for approval of the layout plan as to the entitlement of a land owner for release of such land for non-compliance of the provisions of Sections 26, 27, 37 and 38 of the Planning Act. In this context, we may refer to the judgment of the Apex Court in Balakrishna H. Sawant and others v. Sangli Miraj & Kupwad City Municipal Corporation and others, 2005 (3) SCC 61. In that case, certain lands were reserved for high school and playground in a development plan. The concerned Municipal Corporation did not offer sufficient financial resources to construct the school and playground on the land and therefore the Municipal Corporation did not take action. In the meantime, the Government also took a stand that the reservation had lapsed and in that circumstance, the Apex Court had directed the release of the land. The above judgment was quoted with approval in Raju S. Jethmalani and others v. State of Maharashtra and others, 2005 (11) SCC 222, relating to the power of the Government for de-reservation. In both the judgments, the power of the Government for de-reservation has been upheld prior to the stage of approval of the layout and not afterwards. It is one thing to say that the land should be released to the owner and another thing to say to change the use of the said land. In this case, the question is whether after the layout has been approved showing certain extent of land to be used as park, etc., whether it could be de-reserved for the use of housing plots by an order of the Government. The Government's power to de-reserve the land is not available after the layout plan is approved, except as per the provisions of Section 90, which confers power on the Government only in respect of legality or correctness of the layout plan and not in respect of power to change the usage of the land as shown in the layout. Therefore, the contention of the learned Senior Counsel that in view of non-compliance of the provisions of the Land Acquisition Act, the land in question shall be deemed to have been released cannot be accepted on the facts of this case. Equally, we also hold that in the absence of acquisition of land in terms of Sections 36, 37, 38 of the Planning Act, the Municipal Corporation cannot claim right over the land, as the right of the owner cannot be deprived except following the above procedure. We may also mention that the owner of the land has not executed any gift deed as well in respect of the open space in favour of the Municipal Corporation, thereby the Corporation could claim a right over the land for all legal purposes.
24. This takes us to the next question as to whether in the absence of any declaration under Section 37 and the consequential release of the land under Section 38, the Municipal Corporation could claim ownership of the land on the basis of the resolution. The resolution questioned by the Appellants does not speak of the right of the Municipal Corporation for ownership, but it only speaks for taking over possession of the land. That resolution, in our opinion, could only be read for taking over possession of the open space by the Municipal Corporation in order to maintain as park, etc., as per the layout plan and not for conferring title on the Municipal Corporation. Hence, the validity of the resolution is of no consequence on the facts of this case. In Pt. Chet Ram Vashist v. Municipal Corporation of Delhi, 1995 (1) SCC 47, the Apex Court has directed that the Corporation shall have the right to manage the land which was earmarked for school, park etc., and the Corporation shall not have any right to change the user of land which shall be for beneficial enjoyment of the residents of the colony and it is left open to the Corporation to get the land transferred in its favour after paying the market price as prevalent on the date when the sanction to the layout plan was accorded. Placing reliance on the above judgment, the learned Judge has found that the Municipal Corporation would be only the custodian of the land and cannot claim to be the owner. The custodian of the land is only for the purpose of maintaining the open space and to put to use the purpose for which it was earmarked and for the benefit of the inhabitants. Hence, the learned Judge rightly did not interfere with the resolution and found that the Municipal Corporation is only the custodian of the open space. In our view, the said finding requires no interference. Accordingly, point Nos.(iii) & (iv) are answered.
25. For all the above reasons, we find no merit in the Writ Appeals and accordingly, they are dismissed. Consequently, M.P Nos. 1 & 1 of 2010 are also dismissed. No costs.
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