S. Rajesh Prabhu Vs The Commissioner

Prayer : Appeal has been filed under section 96 read with Order 41 Rule 1 of the Code of Civil Procedure, 1908 to set aside the judgment and decree in O.S.No.1648 of 2019 dated 21.07.2022 on the file of the IV Additional City Civil Court, Chennai as perverse.

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Appellants	: Mr.V.Raghavachari, Senior Counsel for Mr.V.Srimathi
Respondents	: Mr.R.Ramanlaal Addl. Advocate General Asst. by D.R.R.Prabu, Standing Counsel for Chennai Corporation

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JUDGMENT

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Aggrieved over the dismissal of the suit filed for declaration and permanent injunction, the present appeal has been file by the unsuccessful plaintiff.

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The parties are arrayed as per their own ranking before the trial Court.

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According to the plaintiffs, their father one Saraiah purchased an

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extent of 2752 sq.ft. or thereabouts in Selvi Nagar Lay Out bearing plot No.2A by virtue of a sale deed dated 17.12.1999 from one Cellappan, represented by his Power of Attorney Agent namely Banumathy. Ever since from the date of purchase, he was in possession of the suit property. Patta has also granted to

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their father in patta No.79 of 2004 - 2005. The property was assessed by the

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Corporation of Chennai and Chennai Metropolitan Water Supply and Sewerage Board. The property tax and metro water and sewerage taxes and electricity charges have been paid regularly. After purchase, a building has also been constructed by the father of the plaintiffs in the suit property. At that time, the first defendant officials tried to interfere with the construction work. Therefore, the plaintiffs' father has filed a suit for declaration and injunction in O.S.No.2803 of 2000 on the file of the XII Assistant Judge, City Civil Court Chennai. The said suit was decreed and the same has not been challenged by the respondents. In the year 2012, as the plaintiff's father was not well, he settled the property in favour of the plaintiffs on 12.12.2012. From the date of settlement, the plaintiffs are in absolute possession of the property. The revenue records have also been mutated in the name of plaintiffs. When the matter stood thus, in the first week of march 2019, after lapse of 19 years, the defendants once again disturbed the possession of the plaintiffs saying that the land belongs to the Corporation of Chennai and place has been earmarked for park in the SelviNagar Layout. According to the plaintiffs, as per the records no lay out is shown in the suit property earmarked as park of Selvi Nagar and the property has been assessed by the Corporation of Chennai and Metropolitan Water Supply and Sewerage Board and the plaintiffs are paying taxes till date. Therefore, the respondents now cannot contend that the property is vested with https://www.mhc.tn.gov.in/judis Page 3 / 24

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them. The property was never vested with the defendants at any point of time. Hence, the suit.

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It is the contention of the defendants that the assessment made in favour of the plaintiffs has already been canceled on 04.01.2002 by the Assistant Revenue Officer, Zone IV, Chennai Corporation. The suit property measuring to an extent of 2752 sq.f.t vested with Corporation of Chennai. The said property is an Open Space Reserved Land and it is meant for public purposes like park, play ground etc.. Hence, the plaintiff's father have no title to the suit property. The sale deed in favour of the plaintiff's father is non est in the eye of law. The building was removed on 02.05.2000 and the property was not in possession of the plaintiff's father. In the approved lay out of Selvi Nagar, there is no such property as Plot No.2A. The approved plots in a series commencing from 1, and run as 2, 3 and so on. There is no reason to assign the number as 2A in the lay out by the authorities while approving the lay out. The plaintiff's father has mislead the Court and obtained an exparte decree on 04.04.2002 against Corporation of Chennai. According the defendants, the said plot is meant for open space reserved land to be used as CPS - children's play space. The said plot measures 87 feet East, West on the North and 85 feet East West on the South; 24 feet North South on the East and 40 feet on the West, https://www.mhc.tn.gov.in/judis Page 4 / 24

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measuring a total extent of 2752 sq.ft. The sale deed in favour of the plaintiff's father is a fraudulent and collusive document and did not convey any title. According to the defendants, the suit property in the layout of Selvi Nagar is an approved layout by DDTP vide No.LPD/DDTP; 181/75, Letter Ni.3860/75M.C.R.3 and it is earmarked as open space reserved land purposes like park, play ground, etc. The respondents have already taken steps to set aside the exparte decree dated 04.04.2002. Hence, opposed the suit.

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On the basis of the above pleading, following issues have been

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framed :

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Whether the plaintiffs are entitled for the relief of declaration of plaintiffs 1 and 2 are the absolue owners of the suit property by virtue of Settlement deed dated 12.12.2012 in Doc.No.3615/12 or not?

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Whether the plaintiffs are entitled for the relief of declaration of third plaintiff is the absolute owner of the suit property as per settlement deed dated 12.12.2012 in doc.No.3614/12 or not?

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Whether the plaintiffs are entitled for the relief of permanent injunction restraining the defendants not to interfere with the construction work in the suit property or not?

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Whether the plaintiffs are entilted for the relief of

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permanent injunction restraining the defendants from

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interfering plaintiff's peaceful possession or not?

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Whether the suit property belongs to Corporation of Chennai,

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as open space reserved for public purpose or not?

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Whether the claim of the plaintiffs are based on false, fabricated documents or not?

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Whether the encroachment was removed by Chennai

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Corporation authoritites on 02.05.2000 or not?

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What are the other reliefs the parties are entitled to?

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On the side of the plaintiffs, P.W.1 and P.W.2 were examined and Ex.A.1 to Ex.A.20 have been marked. On the side of the defendants D.W.1 to D.W.4 have been examined, out of which D.W.3's evidence has been eschewed

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and Ex.B.1 to B.4 have been marked.

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The trial Court considering the evidence, oral as well as documentary,

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dismissed the suit. Challenging the same, the present appeal has been filed.

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Mr.V.Raghavachari, learned Senior Counsel appearing for the appellant would contend that the property is unapproved lay out. The so called open space lands have not been vested with the local body. No gift deed whatsoever has been executed to the said land. All the revenue records stand in the name of the plaintiffs. Ex.B.1 relied upon by the defendant to show that there was a proposed lay out, has not been established. In fact, only a copy of the plan has been filed with lot of interpolations and corrections which has not been proved before the trial Court. The trial Court has also held that there was interpolation and corrections in Ex.B.1. Despite the above fact, the trial Court has dismissed the suit. Further Ex.B.1 survey number is totally different. Even Ex.B.1 makes it very clear that the area now shown as open space by the defendant has been added in the plan. According to the learned Senior counsel, the area sought to be projected as OSR a building was already constructed by the third plaintiff with approval from the authorities. The said aspect has not been denied by the defendant. According to him, Ex.A.14, Ex.A.19, Ex.A8 and Ex.A.15 series makes it clear that the property tax has been assessed and demand has been raised by the Corporation and plaintiffs are in possession of the property. Earlier suit filed by the plaintiff's father for injunction as well as declaration has been decreed. Though it is an exparte decree, the same has not been challenged by the respondent till date. Therefore, now the defendants https://www.mhc.tn.gov.in/judis Page 7 / 24

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cannot take a different stand. The trial Court has failed to consider these facts.

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In support of his contentions, he has relied on the following judgments :

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M.S.Mohamed Hadi Vs. The Secretary to

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Government, Housing Board and Urban Dvelopment Department & others reported in MANU/TN/6256/2022

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Madras Social Service Society Vs. Greater Chennai

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Corporation and Ors. r eported in MANU/TN/9616/2002

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Whereas, Mr.R.Ramanlal, learned Additional Government Advocate

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appearing for the respondents would submit that the suit itself is not maintainable as the Town Planning Authority has not been made a party to. The Association of the layout and the Revenue Department has also not been made as a party. According to him, even the sale deed of the plaintiffs' father refers the plan issued by the DDTP which show that the property has been vested to the Corporation. Having referred the plan in the sale deed, the plaintiff ought to have produced the plan before the trial Court, which has not been done so. Further, to contend that there was construction in the suit property, no materials have been placed and no permission in this regard filed by the plaintiff. According to him, while approving the plan, the subject

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property has been entrusted to the local body. Therefore, the suit is not maintainable. Once, the property has been entrusted to local body as OSR, the plaintiff cannot claim any right on the property, merely on the basis of false sale deed. It is his further contention that even assuming that the property has not been registered in favour of the defendants, taking note to of the fact that the Corporation is exercising possession over the property for many years, mere registration or non execution of the gift deed will not make any improvement. In support of his contentions, he has relied on the following judgments :

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PT.Chet Ram Vashist Vs. Municipal Corporation of

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Delhi reported in 1995 AIR 430

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Mr.Virender Gaur and others Vs. State of Haryana

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and others reported in [1995] 2 Supreme Court Cases 577

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Association of Vasanth Apartments' Owners Vs.

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V.Gopinath and others reported in 2023 LiveLaw [SC] 105

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Chennai Metropolitan Development Authority rep. by

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its Member Secretary Vs. Abdur Rehman reported in 2002

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[2] CTC 230

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Chennai Metropolitan Development Authority Rep.

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by its Member Secretary Vs. Abdur Rehman reported in

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2002 [2] CTC 230

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Mr.M.Krishnasamy Vs. The Member Secretary ,

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Chennai Metropolitan Development Authority and another,

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the Order of this Court in Writ Petition in W.P.No.14670 of

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2010.

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M/s.Meenakshisundaram Taxtiles Vs.M/s.Valliammal

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Textiles Ltd Judgment of the Division Bench of this Court in

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C.M.A.No.3700 of 2010

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The Chairman, Madras Metropolitan Development

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Authority Vs. S.Radhakrishnan and others reported in 2006

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– I – L.W. 202

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The Member Secretary, Chennai Metropolitan

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Development Authority Vs. M.Krishnaswamy, the judgment

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of the Division Bench of this Court in W.A.No.542 of 2013

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Based on the above pleadings and submissions, now the points arise

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for consideration are as follows:

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(i) Whether the suit property vested with the local body as OSR?

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(ii) Whether the plaintiff is entitled to declaration as prayed for?

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(iii) To what other reliefs, the plaintiff is entitled for?

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Points (i) to (iii)

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The plaintiff traces title on the basis of sale deed executed in favour

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of his father. It is the contention that subject properties to an extent of 2752 sq.ft., Originally, the property belong to one Chellappan. From the Chellappan, the plaintiff father had purchased the property under Ex.A1. Ex.A1 makes it clear that original owner Chellappan had 3 acres 3 cents of land and he developed the land as a layout in Selvi Nagar, Kolathur in L.P.D./DDTP No.181/75 and sold certain lands and remaining lands were subject matter of the sale in favour of the plaintiff's father. Whereas, it is the case of the defendants that the suit property was originally shown in the approved plan as OSR land. Therefore, the property earmarked for open space cannot be converted to any other parties. According to them, sale is not valid. It is relevant to note that though in Ex.A1 reference has been made as if plan was approved in L.P.D.M/DDTP No.181/75. The respondents relied upon Ex.B1 to prove the plan sanctioned by the local authority. In this regard, the Trial Court has not believed Ex.B1 on the ground that several corrections made in the plan and the original plan has not been produced. On a cursory look of Ex.B1, it makes it clear that new area has been shown apart from the original plan to https://www.mhc.tn.gov.in/judis Page 11 / 24

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show as if it is children play space. When the boundary of the original marking were corrected unilaterally by authorities very Ex.B1 is unreliable.

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Further, on perusal of the endorsement made in Ex.B1 makes it clear

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that final approval has not been granted. In fact, final approval for layout will be given only on transfer of certain lands to the concerned local body by way of gift. Though it is the stand of the defendants that the land has been vested with the local body, thereafter, the local body has been marged with the Corporation, it is relevant to note that Ex.B1 is only technical approval said to have been given by the Deputy Director of Town Planning Authority. Except this corrected copy, no other document whatsoever filed to show that area is actually vested with the local body by way of transfer by gift.

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It is relevant to note that in earlier occasion, the plaintiff's father has filed a suit in O.S.No.2803 of 2000 against the Corporation for permanent injunction as well as declaration. Ex.A7/decree and judgment in O.S.No.2803 of 2000 when carefully seen, the suit has been decreed on 04.04.2002, wherein, declaration was granted to the effect that the plaintiff in the suit has confined to the dimensions in the deed of sale dated 07.12.1999 and he has not encroached upon the defendants property. This judgment though an exparte decree is not https://www.mhc.tn.gov.in/judis Page 12 / 24

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challenged by the Corporation all these days. In the present suit, in the written statement, it is stated that they are taking steps to set aside the exparte decree. However, the judgment has not been set aside. Therefore, even assuming that the exparte decree is not validly passed, as long as the exparte decree is not set aside, such decree is binding on the defendants. The Trial Court has ignored Ex.A7 mainly on the ground that decree was only in respect of permanent injunction not for declaration. In fact, the very decree itself clearly indicate that the declaration is also granted to the plaintiff.

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Further, it is to be noted that Ex.A8, patta issued to the second plaintiff, Ex.A9 patta issued to the 1^st and 3^rd plaintiff. Ex.A13 urban land tax receipts paid by the plaintiff and electricity bills paid by the plaintiff in Ex.A14. Ex.A15, property tax demand with receipts would indicate that the demands have been made by the Corporation to the plaintiff's father and the property taxes have been paid by him. Ex.A16 is also property tax receipts. Ex.A12/CMWSSB charges paid by the plaintiff's father from the year 2002 itself. These documents clearly show that property is in possession of the plaintiff. Though Ex.B1 relied upon by the defendants to show that there was an approval plan and the land has been vested with the local body, except attested xerox copy, original has not been produced before the Court and https://www.mhc.tn.gov.in/judis Page 13 / 24

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further endorsement found in Ex.B1 clearly shows that it is not an approved plan, it is only an technical approval granted and final approval will be granted only subject to the execution of the gift deed. Therefore, in the absence of evidence to show that final approval has been given and the property has been transferred to the local authority, the defendants cannot claim any absolute right over the property.

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This Court is of the view that may be owners would have dealt the property based on the technical approval plan granted. At the most, such layout would be only an unapproved layout in such cases, the authorities ought to have taken steps then and there to classify it has an unapproved layout. Without taking any action and sleeping over the matter and even assessing property taxes, water charges in the name of plaintiff's father and allowed him to enjoy the property for many years, now, merely, on the basis of technical plan, even assuming it to be true, the Corporation cannot claim any ownership of the property. Ex.B1 indicate that technical approval has been granted to form layout subject to transfer of property to the local body for common area and roads etc., Thereafter, only final approval will be sanctioned. Therefore, once the final approval has not been given and no transfer is effected or no gift has been obtained by the local body, merely, on the basis of technical approval, https://www.mhc.tn.gov.in/judis Page 14 / 24

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now the respondents cannot claim absolute title over the property. Further as indicated above, Ex.B1 place shown as CPS (Children Play Space) is an addition made in pencil. In fact, this Court has seen the original after summoning it. Place shown in xerox copy (Ex.B1) was made as an addition in pencil. This Court is unable to apprehend on what basis such projection has been made in Ex.B1 which has not been explained.

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Further, it is the specific case of the plaintiff that in Ex.B1 in norther side, a building has been constructed by the third party with the approval of the Corporation. The learned Additional Advocate General also not disputed the fact before the Court. Therefore, when the parties claim that the property is a OSR land vested with the Government, it has to be held that there was a layout plan and property has been gifted to the local body. Whereas, Ex.B1 is only a technical plan for the layout plan, it is not a final approval plan granted by the authority. Therefore, as long as the final approval is not granted, it has to be held that there was no layout as per law. Therefore, merely, on the basis of technical approval which has not culminated into a final approval layout without transfer of land to the Corporation, the Corporation cannot claim any absolute right over the property. The very revenue records and documents filed by the plaintiff clearly show that from the very inception, the plaintiff's father is https://www.mhc.tn.gov.in/judis Page 15 / 24

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in possession of the property. The Trial Court has proceeded as if there was approved layout, in fact, the Trial Court having disbelieved the Ex.B1/plan held that there was several handwritten entries and the Survey Number is shown as 23/1 and they failed to produce the originals from the DTCP and several entries have been made in Ex.B3 also and recorded a finding that entries have been made only at the whims and fancies of the revenue authorities. Having disbelieved the documents, the Trial Court in fact recorded the finding as if at the time of forming the layout, Chellappan marked the plots as a common place, road park and commercial area. The said finding has been recorded without any proof of reserving such area. Therefore, merely on the basis of technical plan sanctioned under 49 of the Tamil Nadu Town and Country Planning Act, 1971 which remains valid only for a period of three years from the date of such permission, thereafter, it has to be approved. If not been extended, the plan lapses automatically. At any event as long as the final approval has not been approved and transfer of land has not been proved, even assuming that based on the technical approval the plots have been sold, as long as there is no valid layout approval as per law and transfer of lands to the local authority, the Corporation cannot claim absolute ownership on the land which has not been transferred to the Corporation or the local body.

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Further, even Ex.B1 makes it clear that in S.No.23/2, specific area

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has been shown as park in southern side, whereas, now, new area has been shown in Northern side as if it is a children space. Such place known as CPS never found in the Ex.B1 wherein, place known as CPS has been included as addition now. Therefore, the very document relied upon by the Corporation makes it clear that place been earmarked as park in the southern portion not on the northern portion of the plan. The very defence of the Corporation in paragraph 8 of the written statement that the suit property is an OSR land which is meant for public purposes like park, play ground etc. Park specifically shown in the southern portion in Ex.B1, whereas, now, in paragraph 11, a new stand has been taken as if the property has been shown as CPC (children play space) bounded on North by S.No.12, East by Road, South by 20 feet road and West by Plot No.2. It is relevant to note that the very Ex.B1, xerox copy has been taken after the correction has been made in the original plan. When the original plan seen by the Court, CPS place shown is only a correction made in pencil at a later point of time only to avoid correction being found in the original, it appears that xerox has been taken and filed as if attested copy before the Court. Therefore, when the place as shown as park, now, correction was made in Ex.B1 now makes it clear that it is a clear

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attempt to deny the rights of the plaintiff. The fact that the plaintiff is in possession of the property and the property tax has been assessed, water tax has been calculated, in fact, fortify the fact that the area now claim in Ex.B1 is interpolated by the authorities. Further, there is no materials whatsoever placed to show that the property has been transferred to Corporation.

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The contention of the learned Additional Advocate General that the non-impleadment of the association is fatal. In this case, as long as there is no objection from anyone with regard to the land, it cannot be said that association has to be impleaded. It is for the plaintiff to chose against whom the relief is sought. Such view of the matter, mere non impleadment of association will not be a ground to non suit the plaintiff. Further, the Corporation is custodian of all the document. Even after the merger of the Villivakkam local authority to the Corporation, all the revenue records ought to have been filed by the Corporation. Whereas, the so-called approved plan and DTCP approval has not been produced. Ex.B1 attested xerox copy has been projected as if it is the original plan. When this Court compared with the original Ex.B1 area, now sought to be projected as CPS is interpolated with the pencil and xerox has

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been attested and filed to make it appear as if this area is originally vested

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with the Corporation . Even Ex.B1 is relied for argument sake, park has been

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earmarked on the southern side, it is clearly visible in Ex.B1. Therefore, the contention of the defendants cannot be countenanced.

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Much emphasis has been given to the judgment of the Hon'ble Supreme Court in the case of Association of Vasanth Apartments' Owner vs. V.Gopinath and others reported in 2023 SCC OnLine SC 137 has held as follows:

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" 184.

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VI. The areas covered by the OSR cannot be diverted for any other purpose. The respondents are duty-bound to ensure that the area set apart as OSR is stringently utilised only for the purpose in the Rule/Regulation. We direct that no area meant for OSR shall be utilised as dumping yards or any other purpose other than as OSR"

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On perusal of the above judgment, no doubt, absolutely there is no doubt with regard to the above proposition of law. Whereas, in the present case, the very vesting of the place to the local authority has not been established. Whereas, Ex.B1 show that park has been earmarked in a different place namely Southern side, now, the Corporation projects on the northern side. Therefore, the above judgment does not applicable to the present case.

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It is apposite to note that this Court in the case of Mr.M.Krishnasamy vs. The Member Secretary, CMDA and another made in W.P.No.14670 of 2010 vide order dated 25.09.2012 has held as follows:

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" 38. In so far as the case on hand is concerned, the first respondent-CMDA has taken a categorical stand that the land belonging to the petitioner is in a layout whose original extent of site was above 10,000 sq. meters. Therefore, the obligation of the original promoter was to carve out Open Space Reservation land to the extent of 10% of the total area. No charges could be or could have been accepted in lieu thereof."

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The fact remains that even assuming that there was an entrustment, the very Ex.B1 itself clearly shows that the area has been classified as a park which is situated in the Southern side, whereas, now, the corporation projects new case without any subsistence on the northern side.

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This Court in the case of P.Ravichandran and another vs. The

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President, C.Kothangudi Panchayat reported in 2015 SCC OnLine Mad 8870 has held as follows:

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" 12.In this regard, I am of the view that, there may not be

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much difficulty for this Court in resolving this issue. Transfer of property is governed by the provisions of the Transfer of Property Act. In this case, no such transfer of the suit property has been effected either by the promoter or by the subsequent purchasers in

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favour of the panchayat/first defendant. Though, an attempt has been made by the first defendant that the approval given by the Director of Town and Country Planning Authority would automatically vest the suit property in favour of the Panchayat, it has got no legal basis. Neither there is any provision in the said Act nor is there any provision in any other enactment enabling such vesting of the property automatically in favour of the first defendant Panchayat. It is too well settled by a catena of judgements of the Hon'ble Supreme Court, that for the properties earmarked for public purpose, the Panchayat becomes the custodian of the public interest to manage the said property in the interest of the general public. The Hon'ble Supreme Court has also held that, 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 (vide Pt.Chetram Vahit (dead) by LRS v. Municipal Corporation of Delhi 1995 (1) SCC 47).

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13.From the above judgement, it is crystal clear that there is no prohibition for transfer of property earmarked for public purpose by the promoter. If the local body wants to gain title for the said property, either that should have been done by way of gift deed executed by the promoter or sale deed executed in favour of the Panchayat thereby conveying title or atleast, there should have been acquisition of the property by the local body from the promoter.

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14.In this case, nothing of that sort happened and therefore, it is crystal clear that the ownership for the suit property remained only with the Society. As I have already pointed out and as more specifically dealt with in the judgement referred to above by the Hon'ble Supreme Court, there is no prohibition for the owner of the land to transfer the title.

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This Court is of the view that the plaintiff has established the title by way of settlement in his favour, property taxes and revenue records stand in the name of the plaintiff. The defendants Corporation have filed the plan with interpolation, even the Ex.B1, open space shown in the southern side not in the northern side as now projected. Further, the earlier suit in O.S.No.2803 of 2000 is binding on the parties, without even challenging the decree and judgment already passed in earlier occasion, the defendants cannot take a different stand. Of course, the suit itself ought not to have filed by the plaintiff, since, the plaintiff is already having a decree in their favour. At the same time, merely, because the plaintiff had filed a subsequent suit, the defendants without challenging the earlier decree, different stand cannot be taken by the defendants. The plaintiff having established his title has to necessarily succeed. Accordingly, these points are answered.

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In all, this appeal stands allowed and the suit is decreed as prayed for with costs. The decree and judgment of the Trial Court in O.S.No.1648 of 2019 dated 21.07.2022 on the file of IV Additional City Civil Court, Chennai is set aside. Consequently, connected miscellaneous petition stand closed.

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19.03.2025

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