Madras High Court
A.S.Rathinam vs The Director Of Town on 3 January, 2022
W.P. No.22991 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 03.01.2022
CORAM
THE HONOURABLE MR.JUSTICE R.SURESH KUMAR
W.P. No.22991 of 2021
A.S.Rathinam ... Petitioner
Vs
1.The Director of Town
and Country Planning,
Koyambedu, Chennai – 600 107.
2.The Member Secretary,
Tiruppur Local Planning Authority,
Tiruppur.
3.The Commissioner,
Corporation of Tiruppur,
Tiruppur. ... Respondents
PRAYER : Petition filed under Article 226 of the Constitution of India,
praying for issuance of a Writ of Certiorarified Mandamus calling for the
records relating to the impugned proceedings dated 02.08.2021 passed in
Na.Ka.No.5951/2021/TCP-3 on the file of the 1st respondent herein, quash
the same and consequently direct the respondent herein to declare that the
petitioner's lands measuring 21964 square feet comprised in S.F.No.734,
situate at Nallur Village, Tiruppur South Taluk and District is deemed to
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be released from the reservation as per Section 38 of Town and Country
Planning Act and to pass appropriate order for release of the petitioner's
land.
For Petitioner : Mr.K.Govi Ganesan
For Respondents : Mrs.V.Yamuna Devi
Special Government Pleader
(for R1 & R2)
: Ms.P.Shanthi
Standing Counsel (for R3)
ORDER
The prayer sought for herein is for a Writ of Certiorarified
Mandamus calling for the records relating to the impugned proceedings
dated 02.08.2021 passed in Na.Ka.No.5951/2021/TCP-3 on the file of the
1st respondent herein, quash the same and consequently direct the
respondent herein to declare that the petitioner's lands measuring 21964
square feet comprised in S.F.No.734, situate at Nallur Village, Tiruppur
South Taluk and District is deemed to be released from the reservation as
per Section 38 of Town and Country Planning Act and to pass appropriate
order for release of the petitioner's land.
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2. The short facts as projected by the petitioner which raise to file
this writ petition are as follows:
(i) The petitioner is the absolute owner and who is in possession of
the property to the extent of 21964 square feet of vacant land along with
200 square feet of Tiled house in S.F.No.734 situated at Nallur Village,
Tiruppur South Taluk and District having been purchased for valuable
consideration vide Sale Deed dated 24.08.2017 and registered as
Document No.3263/2017 on the file of the Joint Sub Registrar No.2,
Tiruppur from one Panneerselvam and two others.
(ii) Presently, the said property is situated at T.S.No.9/3B, Block
No.2, Ward 'O' of Tiruppur. The mutation in the Revenue Records also
taken place and patta bearing Patta No.1135 was also transferred in the
name of the petitioner by the Tahsildar, Tiruppur, South Taluk.
(iii) In the year 1990, a detailed Development Plan No.14 was
prepared in Tiruppur area and the Planning Authorities had earmarked the
lands measuring an extent of 282.54 acres comprising in various survey
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numbers of Nallur Village for formation of 60 feet proposed Scheme Road.
The land purchased by the petitioner at S.No.734 also fell under the said
Scheme.
(iv) Though the Plan was prepared and published in the Government
Gazette on 01.08.1990 under Section 30 of the Tamil Nadu Town and
Country Planning Act, 1971 (in short 'the Act') as approved under Section
29 of the said Act by the 1st respondent, the fact remains that, the land was
not acquired by initiating any further proceedings in accordance with law.
(v) Therefore, after the petitioner purchased the land, he made an
application dated 17.03.2020 through online to the 1st respondent
requesting him to release the said lands since the same though was
intended to acquire, the same has not been acquired and no utility had been
made, the same deemed to have been released under the provisions of the
Act.
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(vi) However, the said representation or application submitted by the
petitioner was considered and rejected through the proceedings dated
02.08.2021 passed by the 1st respondent. Challenging the same, the present
writ petition has been filed.
3. Heard Mr.K.Govi Ganesan, learned counsel appearing for the
petitioner who would straight away submit that, under Section 38 of the
Act, there is a deeming provision, under which, if the property intended to
be acquired and utilised for the purpose of the Scheme has not been
acquired and utilised, then there is a deeming provision as if that the land
has been released from the clutches of any acquisition even under the
proposal.
4. Therefore, the learned counsel appearing for the petitioner would
contend that, though the Scheme was issued long back i.e., in the year
1990 immediately thereafter nothing has been taken place and even after
several years, no acquisition has been made, there was no proposal to
utilise the land in question including the petitioner land for the said
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Scheme. Therefore, under Section 38 of the Act, the land in question
belongs to the petitioner deemed to have been released. Therefore, the land
shall be released from the clutches of the respondents and it should be
delivered to the petitioner for the purpose of holding the same as
unencumbered.
5. Therefore, the learned counsel would submit that, when an
application has been filed in this regard on 17.03.2020, the 1st respondent
has mechanically rejected the same without having gone through the legal
provision available in this regard.
6. In this context, the learned counsel appearing for the petitioner
has relied upon number of decisions and one such decision where I had an
occasion to consider the same issue in W.P.No.21048 of 2010 dated
02.12.2016 has also been heavily relied upon by the learned counsel for
the petitioner.
7. Per contra, Mrs.V.Yamuna Devi, learned Special Government
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Pleader appearing for the respondents 1 and 2, on instruction, would
submit that, though there has been some judgments passed in this regard
those judgments may not be applicable to the facts of the present case and
the respondents have not given up the proposal to have the Scheme Road
specifically by any written notification. When that being so, it cannot be
treated as a shelved project and therefore, the deeming provision under
Section 38 of the Act cannot be invoked in the present case, she
contended.
8. I have considered said submissions made by the learned counsel
for the parties and have perused the materials placed before this Court.
9. So far as the facts projected by the petitioner is concerned, there
can be no much dispute, insofar as legal position is concerned, as has been
pointed out by the learned counsel for the petitioner, the issue raised in this
writ petition is no more res integra. A number of judgments have been
passed by this Court periodically or constantly and one such order where I
had an occasion to consider the issue in detail where all the earlier
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judgments passed in this regard had been considered by me and I passed
an order on 02.12.2016 in W.P.No.21048 of 2010 in the matter of
S.Anand Vs. The Secretary, Housing and Urban Development
Department, Fort St. George, Chennai and others, where I have taken
the following view.
“6. Heard both sides.
7. The learned counsel for the petitioner would
contend that the issue raised in the writ petition is no longer
res integra as the same has been considered in number of
cases by this Court and orders have been passed, wherein by
invoking Section 38 of the said Act, the land, which were
originally ear-marked for the public purpose under the
scheme of the said Act, as approved by the Government
under Section 28 and notified under Section 30 of the Act,
shall be deemed to be re-conveyed, provided the same is not
acquired within the statutory period of three years as
described in proviso to Section 37(2) of the Act. In view of
the said categorical findings given by this Court in series of
cases, the prayer sought for in the present writ petition is to
be allowed. In this regard the learned counsel for the
petitioner relied upon the following decisions of this Court:
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Sl. Citation Case Details
No
1 2008(2) MLJ 184 K.S.Kamakshi Chetty & Others Vs.
Commissioner, Aruppukottai,
Municipality & another
2 2008(8) MLJ 994 Sams Axis City Promoters (P) Ltd.
V. Member Secretary, Trichirappalli
& others
3 W.P(MD)5221/09 V.Nagamani & Another Vs. The
Director of Town and Country
Planning, Chennai and Others
4 W.A.No.1773/09 The Commissioner Aruppukottai
Municipality Vs. K.S.Kamakshi
Chetty & Others
5 W.P.No.14389/10 A.Rajam & Others Vs. The Member
Secretary, Coimbatore Local
Planning, Authority & Others
6 W.P.No.16918/13 K.Balasubramanian Vs. The State of
Tamil Nadu and others
7 W.P.No.136/15 Sparejon Samuel Vs. The Director of
Town and Country Planning, Chennai
& another.
8. On the other hand, the learned Special
Government Pleader appearing for the respondents would
contend that even though there was no acquisition
proceedings initiated pursuant to the issuance of the scheme
as well as the notification, so far as the Coimbatore region is
concerned a master plan was effected as per the
G.O.Ms.No.661, Housing and Urban Development (UDIV)
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Department dated 12.10.1994, thereafter the question of
implementing the detailed development plan as notified in
the year 1964 does not arise. Therefore the contention of the
petitioner, as projected in this case, is liable to be rejected.
The learned Special Government Pleader would also content
that in view of the judgment made in the W.A.Nos. 156 of
2000 and 45 of 2003 passed by the Division Bench of this
Court, once the area is ear-marked for the public purpose, it
cannot be altered or the same shall not be put into any other
use other than ear-marked and therefore the plea raised by
the petitioner herein is not acceptable and the prayer sought
for in the writ petition is liable to be rejected.
9. The learned Standing counsel appearing for
the fourth respondent also submitted that even though the
master plan was prepared and published and the area which
belong to the petitioner also had been ear-marked and the
same has not been so far acquired under the land acquisition
proceedings and that by itself will not confer an absolute
right on the part of the petitioner to seek for re-conveyance.
He would also submit that if the lands were not utilized the
same may be required for any other purpose, therefore
Section 38 of the Act cannot be invoked in this case.
10. This Court have considered the rival
submissions submitted by the respective counsel as well as
the documents and the citation produced by the learned
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counsel for the respective parties.
11. Admittedly, the lands which are in question
belongs to the petitioner. There is no dispute about it. The
said land had been ear-marked for the public purpose under
the 1990 Coimbatore Urban area planning scheme prepared
by the respondents. Subsequently, under Sections 28 as well
as 30 of the Act, the first respondent issued a Government
Order in G.O.Ms.No.661, Housing and Urban Development
(UDIV) Department, dated 12.10.1994, whereby the msater
plan for Coimbatore local planning area submitted by the
Director of Town and Country Planning ie., second
respondent, since having been approved by the Governor
under Section 28 of the Act the same is notified under
Section 30(1) of the said Act.
12. In this regard, the scheme of the Act
whereby this issue have to be dealt with can be looked into.
Under Sections 26 and 27 of the Act, notice of the
preparation of the regional plan, the master plan or the new
town development plan as well as the detailed development
plan is to be issued. Thereafter, after considering the
objection, the ultimate plan shall be approved by the
Government under Section 28 of the Act. Thereafter the
approved master plan or the new town development plan,
under Section 28 of the Act, shall be published by the
Government by notification in the Tamil Nadu Government
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Gazettee and in leading newspapers under Section 30(1) of
the Act. In this regard Section 28 and 30 of the Act are re-
produced here under.
“28. Approval by Government - As soon as may be,
after the submission of the regional plan, the master plan or
the new town development plan but, not latter than such time
as may be prescribed, the Government may, after consulting
the Director, either approve the said plan or may approve it
with such modifications, as they may consider necessary, or
may return the said plan to the appropriate planning
authority to modify the plan or to prepare a fresh plan in
accordance with such directions as the Government may
issue in this behalf and resubmit it to the Government for
approval.
................................
30. Coming into operation of regional plan, master
plan and new town development plan - (1) The approval of
the Government to a regional plan, a master plan or a new
town development plan under Section 28 shall be published
by the Government by a notification in the Tamil Nadu
Government Gazettee and in leading daily newspapers of the
region and such notification shall state the place and time at
which the said plan shall be open to the inspection of the
public.”
13. Once the approval is made and the
notification is issued under Sections 28 and 30 respectively,
then such land ear-marked or reserved or designated shall
be deemed to be land notified for public purpose within the
meaning of Land Acquisition Act and the same can be
acquired under the said Act as provided under Section 37 of
the Act. Thereafter once such a land is reserved or alloted or
designated having approval the Government has every power
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to modify the said development plan. In this regard Section
37(2) is very relevant for the purpose of the case :
“Section 37: ............................... (2) On receipt of an
application made under sub-section (1), if the Government
are satisfied that the land specified in the application is
needed for the public purpose specified therein, they may
make a declaration to that effect in the Tamil Nadu
Government Gazette, in the manner provided in Section 6 of
the Land Acquisition Act, 1894 (Central Act I of 1894), in
respect of the said land. The declaration so published shall,
notwithstanding anything contained in the said Act, be
deemed to be a declaration duly made under the said section
6 of the said Act:
Provided that no such declaration in respect of any
particular land covered by a notice under Section 26 or
Section 27 shall be made after the expiry of three years
from the date of such notice.”
14. From the above proviso, it is clear that
under the scheme, an initial notification is given for the
preparation of regional plan, master plan, new town
development plan as well as detailed development plan
under Sections 26 and 28 of the Act. After considering the
objections, if any, the same shall be approved by the
Government under Section 28 of the Act and thereafter such
approval shall be notified under Section 30 of the Act. Once
it is notified then the Government have got every power to
acquire under Section 37 of the Act. But such acquisition
within the meaning of Section 37(2) shall be made by way of
declaration, which is deemed to be declared under Section 6
of the Land Acquisition Act, 1894, in respect of the said land
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within a period of three years from the date of such notice.
15. Here, in the case on hand, originally the
Government under the G.O.Ms.No.903, L.A. dated
16.04.1964, published and submitted for the sanction of the
Government requiring the Uppilipalayam Panchayat to
prepare, publish and submit, for the sanction of the
Government, a draft Planning Scheme in respect of the area
covered by the boundaries specified thereunder. This
Government order was issued in exercise of the powers
conferred by Section 12 of Madras Town Planning Act, 1920
(Madras Act VII of the Governor of Madras). In the said
G.O.Ms.No.903, various lands of that village have been ear-
marked wherein under the heading Town Planning Scheme
No.11, survey Nos. 491 to 537 had also been ear-marked
which includes the petitioner's land.
16. Thereafter, nothing had happened and
ultimately by G.O.Ms.No.661, dated 12.10.1994, master plan
for Coimbatore local planning area was approved under
Section 28 of the Act and the same have also been notified
under Section 30(1) of the Act. The said G.O.Ms.No.661 was
issued on 12.10.1994. Assuming that it was notified on
12.10.1994, the said three years period, as contemplated
under Section 37(2) proviso of the Act, was over by 11th
October, 1997. Further, no such attempt is made by the
respondents under Section 37 of the Act to acquire the land.
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Therefore, the petitioner contended that in view of the
absence of land acquisition proceedings and when the land
is not acquired within the period or even beyond the period,
Section 38 of the Act, can very well be pressed into service.
In this regard for better appreciation, Section 38 of the Act is
produced hereunder:
“38. Release of land - If within three years from the
date of the publication of the notice in the Tamil Nadu
Government Gazette under Section 26 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.”
17. In so far as the said proposition is
concerned, that is the three years period since was over and
if it is construed in favour of the petitioner then the question
is as to whether Section 38 can be pressed into service to
release the lands of the petitioner by a declaration or not.
Whether the said lands are no more required or deemed to
be released, can be decided by applying the principles laid
down by this Court in series of Judgments as cited by the
learned counsel for the petitioner. In the first Judgment,
cited supra, reported in 2008(2) MLJ 184, (K.S.Kamakshi
Chetty & Others Vs. Commissioner, Aruppukottai
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W.P. No.22991 of 2021
Municipality & another) the learned Judge, after considering
the aforesaid provision of the above said Act, has ultimately
taken the decision in the following lines:-
“9. On the facts and circumstances of the present
case, the petitioners have clearly stated in the affidavit that
even under the old Act VII of 1920, no steps were taken for
the purpose of completing the acquisition within three years
and the same has not been denied in the counter affidavit
filed by the first respondent. Even assuming that the said
scheme has been taken over under the Act 35 of 1972, even
from the date of coming into effect of the Act within the
period stipulated under Section 38, no steps have been taken
by the respondents for acquiring the property for the
purpose of “open space” stated to have been reserved under
the North-East Extension Town Planning Scheme Part II,
Aruppukottai Sanctioned under G.O.Ms.No.474 LA dated
02.03.1969.
10. This has been the consistent view taken by this
Court in various cases also. In W.P.No. 5360 of 2000
(SV.P.N.S.S.Sivaramalingam Vs. Commissioner,
Virudhunagar Municipality and Another)
K.P.SIVASUBRAMANIAM, J. by order dated 20.02.2011,
while dealing with detailed development plan under Act 35 of
1972 has held that after publishing the said plan on
23.05.1984, the property ear-marked for the purpose has not
been utilised in terms of Notification and no steps have been
taken by the authority to acquire the property and therefore,
as per Section 38 of the Tamil Nadu Town and Country
Planning Act, 1971, the property is deemed to be released
from such reservation, allotment or designation. The same
view was subsequently followed by P.D.DINAKARAN, J. in
W.P.No. 12105 of 2003 (R.Jeyapal V. Sattur Municipality
rep. By its Commissioner, Sattur and Another) in the order
dated 03.03.2004
In view of the above said factual situation, the writ
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petition stands allowed and the impugned order of the first
respondent is set aside. No costs.”
18. Thereafter, in the subsequent judgment
reported in 2008(8) MLJ 994 (Sams Axis City Promoters (P)
Ltd. Vs. Member Secretary, Trichirappalli & others), the
Judgment made in WA. 156 of 2000 and 45 of 2003 as has
been relied upon by the respondent, has been considered and
ultimately this Court has given the following findings:
“26. Considering Section 38 of the Tamil Nadu
Town and Country Planning Act, 1971 which deems the
release of property in the event of not acquiring within the
stipulated time of three years as per proviso to Section 37(2),
based on the overall scheme and object of the Act and also
on the factual circumstances, when the authority, viz., the
Trichy Corporation has categorically decided that due to
want of funds, there is not proposal to acquire the same,
there is no difficulty to come to the conclusion that the
deemed provision comes into effect automatically.
.............................
29. In view of the above said legal position applied on
the facts of the present case and in the light of the provisions
of the Tamil Nadu Town and Country Planning Act, 1971,
the impugned order of the first respondent dated 25.01.2008
is set aside and consequently, by application of Section 38 of
the Tamil Nadu Town and Country Planning Act, 1971, it is
declared that the respondents are not entitled to treat the
survey Nos.126/6, 125/2 and 125/1B in Varaganeri village as
ear-marked for public purpose under the Varaganeri South
Development Scheme and the writ petition stands allowed.
No costs. Connected miscellaneous petitions are closed.”
19. Thereafter, in W.P.(MD).No.5221 of 2009
cited supra this Court after following the aforesaid two
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judgements ie., 2008(2) MLJ 184, and 2008(8) MLJ 994 has
given its findings which reads as follows :
“Therefore, having regard to the fact that no steps
have been taken by the respondents as provided in that Act,
either to acquire the land or make publication within three
years from the date of initial notification. As per the deeming
provision of Section 38, the lands are deemed to have been
released from the acquisition and hence, the respondent
cannot reject the approval on the ground that the land has
been included in the 100 Feet AA Road Scheme.”
20. Thereafter, the Division Bench of this Court
in W.A.No. 1773 of 2009, dated 25.08.2011 as cited above,
having considered these aspects, has decided as follows :
“18. As far as the present case is concerned, it is
candidly clear that no steps were taken for completing the
acquisition within three years period, which was not denied in
the counter affidavit filed by the appellant/first respondent
-Municipality in the writ petition. Even assuming that the said
scheme was taken over under the Act 35 of 1972, even from
the date of coming into effect of the Act within the period
stipulated under Section 38, no steps were taken by the
respondents therein for acquiring the property for the purpose
of “open space” purported to be reserved under the North-
East Extension Town Planning Scheme Part II, Aruppukottai
Sanctioned under G.O.Ms.No.474 LA dated 02.03.1969.
19. Looking at from any angle, we are of the
considered view that the property ear-marked for the purpose
was not utilised as per the Notification and no steps
admittedly were taken by the Authority to acquire the
property and therefore, as per Section 38 of the Act 35 of
1972, the property was deemed to be released from such
reservation, allotment or designation.”
21. Thereafter, in yet another judgement in
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W.P.No.14389 of 2010 dated 28.07.2010, this Court having
considered the very same Government Order in
G.O.Ms.No.661 dated 12.10.1994 has taken the following
decision :-
“The petitioner have come up with the present
writ petitioner for a declaration, declaring the action of the
respondents, under Section 26 of the Town and Country
Planning Act by reserving the petitioner's property situated in
S.F.No.446 in Komarapalayam Village, Coimbatore
measuring an extent of 2 Acres and 88 cents for School and
play ground as illegal and unconstitutional and direct the
respondents to release the said property under Section 38 of
the Tamil Nadu Town and Country Planning Act, 1971.
................................. as far as the Coimbatore region is
concerned, Master Plan was effected as per the Government
G.O.Ms.No.661 dated 12.10.1994. Therefore, the question of
implementing the detailed development plan as notified in the
year 1979 does not arise, Further the Division Bench of this
Court has held that the area ear-marked shall not be altered or
the same shall be put into use as per the ear-marked purpose.
Thus, the counter affidavit see for the dismissal of the writ
petition.
.............................
6. In view of the above stated position and in view of
the Section 38 of the Tamil Nadu Town and Country Planning
Act, 1971 the petitioner have to succeed in the writ petition
and they are entitled for the relief sought for by them.
7. In fine, the writ petition stands allowed.
Consequently, connected miscellaneous petition is closed.
However, no orders as to costs.”
22. The same view has also been taken in yet
another judgment in W.P.No.16918 of 2013 dated
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19.09.2016 as cited supra.
23. In view of the plethora of decisions of this
Court as has been quoted above, the law is well settled in
this regard as the issue raised in the writ petition is no more
res integra. Once the three years period is lost within the
meaning of Section 37(2) proviso thereafter, Section 38 can
very well be pressed in service and ultimately the land is
deemed to be released from such reservation, allotment or
designation. Therefore, in view of the legal provisions as
well as the categorical decisions made by this Court, this
Court has no hesitation to hold that the petitioner's land as
claimed in this writ petition, shall deemed to be released
from such reservation or allotment or designation under
Section 38 of the Act and therefore, the petitioner will
succeed in the writ petition.
24. Resultantly, the writ petition is allowed and
consequently the respondents are directed to pass
appropriate orders releasing the petitioner's land comprised
in survey Nos. 509, 510, 511/1, 514, 515, 520, 521 and 522
at No.28, Uppilipalayam Village, Coimbatore South Taluk,
Coimbatore within a period of four weeks from the date of
receipt of a copy of this Order. There shall be no orders as
to costs. Consequently, connected Miscellaneous Petition is
closed.”
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10. The issue raised in the writ petition, as has been rightly
submitted by the learned counsel appearing for the petitioner, is no more
res integra and a complete quietus has been given by a number of
judgments and those judgments have been taken into account, when I have
passed an order, as has been referred to above. Therefore, I am inclined to
follow the said judgment and accordingly, the petitioner is entitled to
succeed in this writ petition.
11. In the result, the following orders are passed in this writ petition:
The impugned order is quashed and the writ petition is
allowed. Consequently, the respondents are directed to pass
appropriate orders releasing the petitioner land comprised in
S.No.734 situated at Nallur Village, Tiruppur South Taluk and
District within a period of four weeks from the date of receipt
of a copy of this order. However, there shall be no order as to
costs.
03.01.2022
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Index : Yes / No
Speaking Order : Yes / No
Sgl
To
1.The Director of Town
and Country Planning,
Koyambedu, Chennai – 600 107.
2.The Member Secretary,
Tiruppur Local Planning Authority,
Tiruppur.
3.The Commissioner,
Corporation of Tiruppur, Tiruppur.
4.The Government Advocate,
High Court, Madras.
R. SURESH KUMAR, J.
Sgl
W.P. No.22991 of 2021
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03.01.2022
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