Madras High Court

S.Dhanalakshmi vs State Of Tamilnadu on 23 August, 2021

                                                                                    WP.No.13049 of 2008

                                   IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                   DATED : 23.08.2021

                                                        CORAM

                                   THE HON'BLE Mr. JUSTICE G.K.ILANTHIRAIYAN

                                                 WP.No.13049 of 2008 and
                                                  MP.Nos.2 & 3 of 2008

                     S.Dhanalakshmi                                     ...         Petitioner
                                                            Vs
                     1.State of Tamilnadu,
                       rep. by the Secretary to Government,
                       Housing & Urban Development Department,
                       Chief Secretariat, Chennai 600 009
                     2.The Commissioner / Director of Town &
                           Country Planning,
                       807, Anna Salai, Chennai 600 002
                     3.The District Collector-cum-Chairman
                       of the Salem Local Planning Authority,
                       Collectorate,
                       Salem 636 001
                     4.Joint Director of Town & Country Planning
                        and Member Secretary,
                       Salem Local Planning Authority,
                       Nedunchalai Nagar, Salem 636 005
                     5.The Commissioner,
                       Salem Municipal Corporation,
                       Salem 636 001                                    ...         Respondents
                     Prayer :- Writ Petition is filed under Article 226 of the Constitution of India
                     praying to issue a writ of certiorari calling for the records of the second
                     respondent       relating   to   the   order    and      notification    bearing

                     1/18
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                                                                                       WP.No.13049 of 2008

                     Roc.No.31604/2004 DP-1, dated 12.09.2006 published in the T.N.Govt
                     Gazettee No.38 dated 27.09.2006, and first respondent order and
                     notification bearing Roc.No.14607/2007/DP-1 dated 31.03.2008 on the file
                     of the second respondent and quash the same.
                                   For Petitioner        : Mr.T.P.Manoharan,
                                                           Senior Counsel
                                                           for Mr.K.P.Jyotheswaran

                                   For Respondents
                                            For R1 to 3: Mr.M.R.Gokul Krishnan,
                                                         Government Advocate

                                             For R4      : Mr.M.Elumalai

                                             For R5      : No appearance

                                                           ORDER

This Writ Petition is filed to issue a writ of certiorari calling for

the records of the second respondent relating to the order and notification

bearing Roc.No.31604/2004 DP-1, dated 12.09.2006 published in the

T.N.Govt Gazettee No.38 dated 27.09.2006, and order and notification

bearing Roc.No.14607/2007/DP-1 dated 31.03.2008 on the file of the

second respondent and quash the same.

2. The case of the petitioner is that Aravankadu area consisting of

164 acres of agricultural lands, is situated adjacent to the Salem Town. The

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owners of those agricultural lands have converted the same into residential

plots by way of layouts and the same was approved by the planning

authority. Thereafter, all the plots were sold out to various third persons.

The purchasers also constructed houses in their respective plots. Therefore,

the entire area already has been developed as residential area in accordance

with the provisions contained in Tamilnadu Town and Country Planning

Act, 1971 (hereinafter called as TNT & CP Act) and renamed as Sankar

Nagar. Therefore, there is absolutely no need or necessity to once again

develop such a developed area by way of preparing a development plan

either under Tamilnadu Town Planning Act, 1920 or now under the

Tamilnadu Town and Country Planning Act, 1971. While being so, the fifth

respondent herein prepared a development plan for such developed area in

the name of Periyeri Town Planning Scheme by GO.Ms.No.2467, R.D. &

L.A. Dept dated 15.12.1969. The first respondent sanctioned the said

scheme as contemplated under Section 14 (3) of the Tamilnadu Town

Planning Act, 1920 and published the same in the Government Gazette on

21.01.1970.

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2.1 In the said scheme, a portion of the road was contemplated

admeasuring 1452 sq.ft. owned by one, Periyanna Gounder. After such

publication, old act was repealed and new Act has been enacted. The

respondents realised that it has been already developed and abandoned the

scheme, not proceeded with further, such as acquisition of land, allotted or

designated therein and not published the declaration under Section 37(2) of

the TNT & CP Act, 1971, within a period of three years from the date of

publication. Therefore, all the house sites were released from the scheme,

since the scheme itself had lapsed, not in legal existence, non-est and

become dead as early as on 20.01.1973. As such, all the owners are entitled

to develop and use their respective house sites according to their

convenience. Accordingly, the said Periyanna Gounder was entitled to deal

with his house site bearing TS.No.4/2A2, since it was also released from the

scheme. Hence, he sold out the said house site in favour of one

K.P.Ramasamy and others by the sale deed dated 25.04.1984. In turn, they

sold out the same in favour of one, Periyannan by another sale deed. The

said Periyannan had sold the house site to one, Balakrishnan. The petitioner

with bonafide intention, purchased the house site admeasuring 1452 sq.ft

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from the said Balakrishnan by registered sale deed dated 25.09.2006 for

valuable sale consideration. Thereafter, after obtaining the building plan

from the fifth respondent and constructed house with one borewell. The said

house was also assessed to the property tax and also obtained electricity

service connection and the petitioner is living there.

2.2 While being so, the third respondent has ignored the above

facts, position of law and procedures, and made a proposal for variation of

the lapsed and dead Periyeri Town Planning Scheme in the name of the

Periyeri Detailed Development Plan and submitted before the second

respondent for his approval and made publication in the Gazatte. The

second respondent also without applying his mind conducted enquiry,

approved the said variation and issued variation notification under Section

33 (1) of the TNT & CP Act, 1971. It was also published in the notification

dated 27.09.2006. The fourth respondent published the said notification in

Salem District Gazette on 24.01.2007. Thereafter, the second respondent

passed order on 31.03.2008 accepting the request made by the fourth

respondent and confirmed the variation notification issued under Section 33

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(2) of the TNT & CP Act, 1971 and issued notification. The above orders

and notifications are arbitrary, unwarranted, illegal and contrary to the

object, purpose and provisions of the TNT & CP Act, 1971 and Rules.

3. Per contra, the fourth respondent filed counter and denied all

the allegations generally. Further stated that Town Planning Scheme is under

implementation. Change of scheme is permitted under Section 33 (1) of

TNT & CP Act, 1971 and there is provision to make sure about the

implementation of the scheme under Section 33 (2) of the said Act. Till such

time, the scheme already sanctioned will be in force. Before making such

variation, the owners of the houses and house sites in the area are consulted

as required under Section 21 of the TNT & CP Act, 1971 and the procedures

were strictly followed as required under the Preparation and Sanction of

Detailed Development Plan Rules. Therefore, he prayed for dismissal of the

writ petition.

4. The learned Senior Counsel appearing for the petitioners

submitted that the impugned orders and notifications are arbitrary, unjust,

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unfair, unwarranted, contrary to the object, purpose and provisions of TNT

& CP Act, 1971 and Rules. It violates Article 14 and 300-A of the

Constitution of India. In view of Section 33 (1) of the TNT & CP Act, 1971,

the respondents can very well vary or modify only a town planning scheme,

while is alive, in legal existence and in force as on the date of such variation

or modification. They cannot vary or modify the town planning scheme

which had already lapsed, dead or not in legal existence, indirectly give life

to it and seek to implement the same. He further submitted that Periyeri

Town Planning Scheme proposed by the respondents in the year 1969

already lapsed as on 20.01.1973. Therefore, after 35 years, the respondents

cannot invoke Section 33 (1) of the TNT & CP Act, 1971 and vary such

lapsed and dead scheme. The Aravankadu area in Salem has already been

developed as a pucca residential area in accordance with the provisions

contained under the TNT & CP Act, 1971 and renamed as Sankar Nagar in

the year 1969 itself. Therefore, there is no need or necessity to once again

develop such a developed area by way of preparing the development plan

under Section 17 to 31 of the TNT & CP Act, 1971. Even before making

variation in the scheme, the third respondent is duty bound to consult the

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owners of the houses and house sites in the area as required under Section

21 of the TNT & CP Act, 1971 and strictly follow the procedures and issue

required notice prescribed under the Rules. However, the third respondent

failed to do so and as such the entire impugned proceedings are vitiated and

liable to be quashed.

4.1 He further submitted that the fourth respondent filed counter

with bereft of facts. There is no specific denial by the fourth respondent

with regards to the averments made in the affidavit filed in support of the

writ petition. There must be specific denial for each and every averments in

the affidavit. As per Section 58 of the Evidence Act, when the facts are

admitted, need not be proved. Even as per the counter filed by the

respondent concerned, there is no specific denial and it amounts to the

respondent concerned admitted the fact. In support of his contention he

relied upon the judgment in the case of Asha Vs. PT.B.D.Sharma

University of Health Sciences and Others reported in (2012) 7 SCC 389,

wherein it is held as follows:

It is a settled principle of the law of pleadings that

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an averment made by the appellant is expected to be specifically denied by the replying party. If there is no specific denial, then such averment is deemed to have been admitted by the respondent. In the present case, it is evident that the above-noted averments in the writ petition were relevant and material to the case. In fact, the entire case of the appellant hinged on these three paragraphs of the writ petition. It was thus, expected of the respondents to reply these averments specifically, in fact to make a proper reference to the records relevant to these paragraphs. In view of the omission on part of the respondents to refer to any relevant records and failure to specifically deny the averments made by the appellant, we are of the considered view that the appellant has been able to make out a case for interference.

The Hon'ble Supreme Court of India held that what are all the averments

made in the affidavit, is expected to be specifically denied by the replying

party. If there is no specific denial, then such averment is deemed to have

been admitted by the respondent.

4.2 The learned Senior Counsel also relied upon the following

judgments in support of his contention:

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(i) Raju S.Jethmalani & Ors Vs. State of Maharashtra and Ors reported in (2005) 11 SCC 222

(ii) Pillaiyar P.K.V.K.N.Trust Vs. Karpaga N.N.U.S and Ors reported in (2010) 9 SCC 344

(iii) Commissioner, Aruppukottai Municipality Vs. K.S.Kamakshi Chetty & Others reported in (2011) 8 MLJ 437(DB)

(iv) K.S.Kamakshi Chetty & Others Vs. Commissioner reported in (2008) 2 MLJ 184

(v) Casa Granade Private Ltd Vs. Chennai Metropolitan Development Authority reported in (2007) 3 MLJ 647

(vi)V.Nagamani & Another Vs. The Director of Town Country Planning, Chennai and others reported in 2010(2) CTC 510

(vii)The Commissioner, Bhavani Municipality Vs. C.Ramasamy and ors reported in 2015(4) CTC 25

(viii)Kunwar Pal Singh Vs. State of UP and others reported in (2007) 5 SCC 85

(ix) State of Orissa & another Vs. Mamata Mohanty reported in (2011) 3 SCC 436

5. Heard, Mr.T.P.Manoharan, Senior Counsel appearing for the

petitioner, Mr.M.R.Gokul Krishnan, Government Advocate appearing for

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the respondents 1 to 3, and Mr.M.Elumalai, the learned counsel for the

fourth respondent.

6. On perusal of the counter filed by the fourth respondent, except

the general denial, there is no specific denial by the fourth respondent with

regards to the averments made in the affidavit filed in support of the writ

petition challenging the impugned notification.

7. The petitioner purchased the subject property by the sale deed

dated 25.09.2006 as a house site admeasuring 1452 sq.ft. named as Sankar

Nagar. The area called Aravankadu is situated adjacent to the Salem Town

had been converted into house plots by the approved lay out even in the

year 1960. The house plots were purchased by various parties and they have

constructed their respective houses and named as Sankar Nagar. At that

juncture, the fifth respondent herein prepared a development plan in the

name of Periyeri Town Planning Scheme by the GO.Ms.No.2467 R.D &

L.A. Dept dated 15.12.1969. The same was published in the Government

Gazette on 21.01.1970. In the said scheme, a portion of the road was

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contemplated in the house site bearing TS.No.4/2A2 admeasuring 1452 sq.ft

owned by one, Periyanna Gounder. The said property is now purchased by

the petitioner. After the said publication, the Government of Tamilnadu

repealed the Tamilnadu Town Planning Act, 1920 and enacted the present

act i.e. TNT & CP Act, 1971. Even before the scheme called Periyeri Town

Planning Scheme, the entire Aravankadu area was developed and renamed

as Sankar Nagar. Thereafter, the respondents had abandoned the said

scheme and not proceeded with, not taken any step to acquire the lands,

allotted or designated therein and not published the declaration under

Section 37(2) of the TNT & CP Act, 1971 within a period of three years

from the date of the publication.

8. In view of the proviso to Section 37(2) of the TNT & CP Act,

1971, if no declaration required under Section 37(2) in respect of any

particular land covered by a notice under Section 26 or 27 shall be made

after the expiry of three years from the date of such notice. In view of

Section 38 of TNT & CP Act, 1971, if within three years from the date of

publication of the notice in the Tamilnadu Government Gazette under

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Section 26 or 27, no declaration under Section 37(2) is published in respect

of any land reserved, allotted or designated for any purpose specified in the

development plan or such land is not acquired by agreement, such land shall

be deemed to be released from such reservation, allotment or designation.

However, the same were not done. Therefore, all the house sites including

the house site bearing TS.No.4/2A2, were released from the said scheme

and the said scheme itself had lapsed, non-est and become dead as early as

on 20.01.1973.

9. In view of Section 33 (1) of TNT & CP Act, 1971, the

respondents can vary or modify only town planning scheme which is alive,

in legal existence and in force on the date of such variation or modification.

They cannot vary or modify the town planning scheme which were already

lapsed and not in legal existence. Therefore, the respondents cannot invoke

Section 33 (1) of the TNT & CP Act, 1971 and vary such lapsed and dead

scheme, that too after period of 35 years. In this regard, the learned Senior

Counsel relied upon the judgment in the case of Raju S.Jethmalani & Ors

Vs. State of Maharashtra and Ors reported in (2005) 11 SCC 222, wherein

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it is held as follows:

Therefore, the question is whether the Government can prepare a development plan and deprive the owner of the land from using that land ? There is no prohibition of including private land in a development plan but no development can be made on that land unless that private land is acquired for development. The Government cannot deprive the persons from using their private property. We quite appreciate the interest of the residents of that area that for the benefit of the ecology, certain areas should be earmarked for garden and park so as to provide fresh air to the residents of that locality. In order to provide such amenities to the residents of the area private land can be acquired in order to effectuate their public purpose but without acquiring the private land the Government cannot deprive the owner of the land from using that land for residential purpose.

10. He also relied upon the judgment in the case of Pillaiyar

P.K.V.K.N.Trust Vs. Karpaga N.N.U.S and Ors reported in (2010) 9 SCC

344, wherein it is held as follows:

25.The High Court then referred to the argument made that admittedly 40 plots were private land and, therefore, even if it is presumed that it was included

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under the plan of 1992, yet since the land was not acquired either by agreement or by acquisition, they would be deemed to have been released from reservation. The High Court has undoubtedly posed this question up to paragraph 16 but has chosen not to answer it till last. We, therefore, put the same question to the Counsel for the respondent as also to the Counsel for the Government and both the Counsel fairly conceded that the land is still not acquired.

26. Section 38 of The Tamil Nadu Town & Country Planning Act, 1971 runs as under:-

38. Release of land:- If within three years from the date of the publication of the notice in the Tamil Nadu Government Gazette under section2 6 or section 27- (a) no declaration as provided in sub-section (2) of section 37 is published in respect of any land reserved, allotted or designated for any purpose specified in a regional plan, master plan, detailed development plan or new town development plan covered by such notice; or

(b) such land is not acquired by agreement, such land shall be deemed to be released from such reservation, allotment or designation.

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27.In view of the admitted position that the land is not acquired by agreement till the date of the judgment of the High Court, the deeming clause would certainly come into force and, therefore, the concerned land would certainly be deemed to have been released.

28.The High Court has also referred to the reported decision in Raju S. Jethmalani & Ors. Vs. State of Maharashtra & Ors. [2005 (11) SCC 222], where this Court has clearly held that the owner of the special land cannot be prohibited from using it since it is the private property and Government cannot deprive the persons from using their private property and, therefore, the acquisition of the property is a must before any such person is restrained from using the land.

The Hon'ble Supreme Court of India held that no development can be made

on that land unless that private land is acquired for development. The

Government cannot deprive the persons from using their private property.

Without acquiring the private land, the Government cannot deprive the

owner of the land from using that land for residential purpose. Further held

that if the land was not acquired either by agreement or by acquisition, they

would be deemed to have been released from reservation.

11. In the case on hand, the scheme of Periyeri Town Planning

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was already lapsed and dead and there was no acquisition. Therefore, the

entire scheme itself had lapsed as early as on 20.01.1973. After period of 35

years, the respondents cannot invoke Section 33 (1) of the TNT & CP Act,