- (1.) AS the facts involved in both the writ petitions are identical, they are disposed of by this common order.
(2.) THE petitioner is a registered Association for the welfare of the residents of SIDCO Nagar, Villivakkam, having 5000 residential units and population of about 25,000. From the date of the registration on 19.06.1985, the petitioner's Association claims to be functioning and looking after the welfare and civic amenities of the residents of SIDCO Nagar. A master plan was approved by the 1st respondent for the entire neighbourhood as Phase 1, Phase-II and Phase-III providing different types of user zones for residents, commercial activities, schools, parks and play ground etc. After the approval of the master plan by the 1st respondent, in conformity with the provisions of Town and Country Planning Act and Development Control Rules, the 3rd respondent/the Tamil Nadu Housing Board has laid out park and play ground to an extent of 12 grounds in Phase - 1, 4th Main Road, adjoining Government Girls Higher Secondary School, situated in Ward No.63, Zone No.IV, Villivakkam, which is coming within the 2nd respondent jurisdiction. In the year 1999, when the 2nd respondent Chennai Corporation failed to maintain the park and playground properly, the antisocial elements started converting the same as a dumping yard circled by natural growth of wild bushes and vegetation. Due to the non-maintenance of the of the aforesaid approved park and playground, the petitioner has sent many representations to the respondents about the maintenance of the said park and playground. THErefore, the 3rd respondent/the Tamil Nadu Housing Board, in their communication dated 04.08.1999, requested the 2nd respondent to take over the aforesaid park and playground. Again, on 30.12.2003, the petitioner made a representation to the respondents 2 and 3 to establish and maintain the park and playground and as such, the area is reserved in the master plan. THE said representation was also followed by the reminder representations dated 16.08.2004, 12.07.2005, 08.08.2005 and 30.09.2005 to the respondents. THE 1st respondent, by taking note of the petitioner's representation dated 12.07.2005, requested the petitioner to approach the 2nd respondent in this regard. However, the 2nd respondent turned its deaf ear in not addressing the grievance of the petitioner. THErefore, another representation dated 31.01.2006 was addressed to the Government by marking a copy to the 2nd respondent. THE 2nd respondent, after receiving the representation on 03.02.2006, even followed by remainder representation dated 10.06.2006, has not taken any fruitful steps for the same. Again, after giving another representation dated 04.01.2007 by registered post with acknowledgement due, finding no fruitful response, on the grievance day on 12.01.2007, the petitioner gave another complaint to the 2nd respondent, though it was acknowledged, none of the respondents took any steps to maintain the park and playground. Subsequently, when an attempt was made by the 3rd respondent to allot a part of the playground to the transport corporation for its Villivakkam bus depot, the same was objected by the petitioner association, as a result, the respondent dropped the same. Subsequently, after pongal festival in the year 2007, when the announcement came to convert the park and playground for use of commercial purpose by the 3rd respondent by way of sale with a consent of the respondents 1 and 2, the petitioner came to this Court by filing the present writ petition with the aforesaid prayer. Mr.N.S.Nandakumar, learned counsel appearing for the petitioner placed three fold submissions. Firstly, it was vehemently argued that the respondents have no authority to convert or allot or take steps to convert, allot, assign, sell or otherwise deal with for any other purpose, other than as the approved park and playground situated near Government Girls Higher Secondary School, 4th Main Road, Ward No.63, Zone IV, Villivakkam. Secondly, it was contended that the 2nd respondent is statutorily duty bound to maintain aforesaid park and playground by abating nuisance, cleaning wild bushes and vegetation. Thirdly, it was submitted that if the respondents are allowed to alienate the park and playground approved in the master plan, this will amount to violation of developmental control Rules, which ultimately will destroy the environmental and ecological balance in the form of open place available to the residents of the area. In support of his submissions, he has also relied upon a judgment of the Division Bench of this Court in the case of R.Chandran Vs. State of Tamil Nadu (2010 (4) CTC 737) for a proposition that right to life is not only fundamental right but also right to lead a decent life and to enjoy fresh air and water by using parks and ground, which is meant for public at large and if the development control rules provides that where use of site or premises is specifically designated as open space, it shall be used only for that purpose for which it has been so designated. On that basis, the decision of the Corporation to convert the approved park and playground into an underground car park was rejected by the Apex Court.
(3.) IN his further submission, he has also relied upon yet another judgment in the case of Dr.G.N.Khajuria Vs. Delhi Development Authority (AIR 1996 SC 253), wherein it has been held that it is not open to the DDA to carve out any space meant for park for a nursery school. On that basis, the Honourable Apex Court has held that the allotment of a site in favour of the nursery school was held to be misuse of power for reasons which need not be adverted. In reply, Mr.P.S.Raman, learned Advocate General appearing for the respondents 3 and 4 submitted that the subject matter of land is a part of an extent of 47 grounds 1657 sq.ft. (2.63 acre), which was an approved layout earmarked for High School and playground and the same was allotted and handed over to the Educational Department. While executing the development works, the site office reserved for store cum site office. After settlement by the allottees, the petitioner's welfare association requested this site for bus stand use and examining the said request, the CMDA prepared a part layout with four commercial plots and remaining area reserved for bus stand site in the area reserved for store cum office. Thereafter, Dr.Ambedkar Transport Corporation Limited was requested to offer their willingness for providing a bus terminus at Villivakkam. But, the Transport Corporation refused to take over the bus stand site, therefore, the Tamil Nadu Housing Board has taken action to dispose of the above said commercial sites of convenience shops site in the above said part layout No.L.P.S&S No.8/94, dated 30.08.94, through sealed cum open auction. Mr.K.Venkatesan, Mr.B.Vasu and Mr.Gangadara were declared as successful bidders of the site No.4, 1 and 2 respectively and subsequently, they have also paid their respective bid amounts to the Tamil Nadu Housing Board. Thereupon, the TNHB decided to construct commercial cum residential complex in the said site and has cancelled the sealed cum open auction. Subsequently, the successful bidders filed W.P.Nos.8112 to 8114 of 1997 before this Court and this Court, by order dated 30.06.1999, considering the facts and circumstances of the case, directed the respondents to proceed with construction of the commercial and residential complex and however, on completion of the same, the respondent Board shall give preference to each of the petitioners in the above writ petitions by allotting them one shop of 62 sq.mtr. each at the prevailing market rate. Therefore, the site reserved for bus stand and 4 convenience shops were decided to be converted as mixed residential use. So much so, a resolution dated 10.02.1998 was passed approving the conversion of the site into commercial use for construction of commercial cum residential complex. On that basis, the learned Advocate General further argued that the 3rd respondent has not laid any park and playground in an extent of 12 grounds in Phase I, now situated in 4th main road, adjoining Government Girls Higher Secondary School. In fact, in the original layout, the land to an extent of 12 grounds was earmarked for store cum site office and out of which, an extent of measuring 3 grounds of land has been handed over to Chennai Metropolitan Water Supply and Sewage Board and balance land to an extent of 9 grounds was used as store cum site office while executing the development works. Therefore, the learned Advocate General further submitted that there was no park and playground adjoining the Government Girls Higher Secondary School in the approved layout of the SIDCO Nagar.;