Discretionary powers
Thyagarajan
(Querist) 10 November 2011
This query is : Resolved
Dear Members,
Chennai Metropolitan Development Authority had by virtue of powers vested on it by provisions in Master Plan created under Town and Country Planning Act and its discretion had permitted a Residential Flat Owners’ Association to maintain a park to be developed by Corporation in ‘Open Space reservation Area’ that that was gifted to it by a builder. The gift is a pre-requisite for getting planning permission to bring up a multistory building. Though the Corporation had drawn a plan for the park and had got money for doing so sanctioned, it had decided to maintain the park by itself much against the discretion of CMDA. CMDA was neither advised by corporation about it nor had CMDA changed its discretion. Is Corporation empowered to decide against provisions of Master plan created by CMDA, not only in this specific case but in general?
Advocate. Arunagiri
(Expert) 10 November 2011
Corporation is having all such powers to take over the maintenance of the park. When they are changing its purpose, you can object by way of writ.
Thyagarajan
(Querist) 10 November 2011
A letter from CMDA to Corporation on the purpose of usage of park area by flat owners and its maintenance to be done by the association as per master plan is existing in records. So, as you said, changing the method of usage to public and corporation maintenance warrants interference of court. Thanks for your answer
M V Gupta
(Expert) 11 November 2011
CMDA functions independently under the CMDA Act and the Municipal corporation should not interfere. As your builder had gifted the land to the CMDA subject to the specific approval that your Society will maintain the garden, you may object to the decision of the Corporation to take over the maintenance. But please note that the park may be a public park accessible to the public at large and not exclusively to members of your Society. If the corporation does not allow your Society to maintain the park, you can always appeal to the State Govt and ultimately to the Court. The State Govt is the appellate authority and hence you may have to approach it before rushing to the Court.
Thyagarajan
(Querist) 11 November 2011
Dear Gupta,
I have filed a writ petition in court putting Corporation and CMDA as respondents
The petition is numbered and notices served. The Judge felt not to involve Government. Couple of hearings were there.I am awaiting counters.
Thanks for yr answer . Regards
Devajyoti Barman
(Expert) 11 November 2011
You have treaded the right path.
All the best.
Thyagarajan
(Querist) 23 November 2011
Dear Mr. Guptha Mr.D.Barma
I am attaching an order from Justice Dhanapalan on writ petition on a different case on the obligation on the part of Corporation to honor provisions/permissions /concessions as per Master plan made by CMDA. My case is pending before the same Justice. Please solicit whether I could cite this as precedence for maintaining administrative continuity on delivery of justice.
Regards
