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Vol. XXV No. 24, April 1-15, 2016

Open space reservation

What you need to know about:

Samoogam, Samudhayam, Aanmeegam are the three main concerns in life for S. Srinivasan of Kottivakkam. He is a retired Gazetted Officer from the Madras High Court. He started independent practice from 2011. He does free legal counselling services for needy people and also conducts free medical camps for the economically weaker section. He talks to M. Rajini and R. Sumathi, and enlightens readers on OSR, the rights of residents in a colony, and the norms to fight against encroachment.

What is OSR?

OSR stands for Open Space Reservation. According to CMDA’s development and control rules, 10 per cent of an area should be reserved as communal and recreational open space before the actual approval of any layout under the provisions of Town and Country Planning Act.

What is the significance of this?

With large scale rural exodus and rapid urbanization, open spaces become a necessity not a mere amenity. It not only serves as lung space but also meets the commercial and recreational requirements of the inhabitants. In modern planning and development, it occupies an important place in social ecology. No town planner would prepare a blueprint without resourcing open space. Town planning development acts of different States require even private house owners to have open spaces in front and back for lawn and fresh air.

Can land specified for public purpose be used for any other purpose?

The Apex Court and the Madras High Court, in numerous cases, has held that the open space earmarked for public purpose cannot be altered.

Can the Corporation claim ownership of the OSR land gifted to them for development of a park or play round?

As held by the Supreme Court Directive, the answer is ‘No’. The space transferred to the local body, through a gift deed, shall be used for beneficial and enjoyment of the residents of the colony. The local body would only be the custodian of the land and cannot claim to be the owner.

What are the duties of the custodian of the OSR land?

The mandatory duty of the public authority is to maintain the open space and to put it to use for the purpose for which it was earmarked and for the benefit of the residents of the colony only. If the OSR land is encroached in and developed with illegal construction etc., the public authority has been empowered to issue demolition notice under Section 56 along with Section 85 of Town and Country Planning Act 1971, requiring demolition of unauthorised construction put up without approval of the Planning Commission and restore the OSR land to its original position.

Is there any penalising of the encroachers home owners / violators?

Yes. The Tamil Nadu Town and Country Planning Act 1971 contemplates restoration of OSR land to the original state. If the illegal occupants fail to comply within the period specified in the demolition order, the Appropriate Planning Authority may itself take such measures and recover the cost thereof from the offenders as arrears of Land Revenue. Further, the offence committed is to be treated as a continuing one, till the offending structure is demolished.

What is the ruling of the Courts on the inaction of the Public Authority?

The Chennai Corporation and The Chennai Metropolitan Development Authority (CMDA) have failed to take proper and effective steps to halt such unauthorised developments and no follow-up action was taken. The Government, which has administrative control over these authorities, is actually aiding and abetting the violators. The Supreme Court of India has directed the Government of Tamil Nadu and other authorities to take effective measures to check at the root level.

This mess is due to the in efficiency, callousness and the failure of the statutory functionaries to perform their obligation under the Act; it is high time that remedial measure was taken up by the State.

The number of unauthorised constructions increase manifold primarily due to lack of responsibility shown by statutory authorities, who deliberately turn a blind eye to such violators, even though they are vested with sufficient powers to launch criminal prosecution against the violators.

The State Government and the concerned authorities are required to act diligently and prevent recurrence of such kind of unlawful activity in future and deal with the violators with an iron hand.

In the landmark T’Nagar Usman Road’ case, the Madras High Court directed the Government and authorities concerned to file an affidavit justifying their inaction all these years.

S. Srinivasan can be contacted at 97910 19450 – (Courtesy: Adyar Times.)

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    Iam thankful to you if the court judgements referred above are mailed to me for my personal updating and updating the co residents.

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