Madras High Court
P.Vijay Natraj vs The Government Of Tamil Nadu on 12 January, 2022
W.P.No.417 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 12.01.2022
CORAM :
THE HONOURABLE MR.JUSTICE R.SURESH KUMAR
Writ Petition No.417 of 2022
and W.M.P.No.475 of 2022
1.P.Vijay Natraj
2.V.Santhi
3.V.Rajesh …. Petitioners
-Vs-
1.The Government of Tamil Nadu
Represented by Secretary to Government
Housing and Urban Development Department
Fort St.George, Chennai – 600 009.
2.Coimbatore Local Planning Authority
Represented by its Member Secretary
Coimbatore.
3.The Commissioner
Coimbatore Corporation
Coimbatore.
4.S.Velusamy …. Respondents
Prayer : Writ Petition under Article 226 of the Constitution of India praying for the
issuance of a Writ of Declaration declaring the lands in Survey No.26/2B and 26/3 of
Tudiyalur village which was part of the land proposed for the inner-ring road in the
Coimbatore Master Plan under G.O.(Ms) No.661, Housing and Urban Development
Department dated 12.10.1994 under Section 28 of the Tamil Nadu Town and Country
Planning Act stand released from the reservation / designation / allotment under
Section 37 and 38 of the Tamil Nadu Town and Country Planning Act, 1971.
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W.P.No.417 of 2022
For Petitioner : Mr.AR.L.Sundaresan
Senior Counsel for Mrs.A.L.Gandhimathi
For Respondents : Mrs.V.Yamuna Devi
Special Government Pleader – for RR 1 and 2
ORDER
The prayer sought for herein is for a Writ of Declaration declaring the lands in
Survey No.26/2B and 26/3 of Tudiyalur village which was part of the land proposed for
the inner-ring road in the Coimbatore Master Plan under G.O.(Ms) No.661, Housing
and Urban Development Department dated 12.10.1994 under Section 28 of the Tamil
Nadu Town and Country Planning Act stand released from the reservation /
designation / allotment under Section 37 and 38 of the Tamil Nadu Town and Country
Planning Act, 1971.
2. The petitioners claim that they owned the landed properties in S.Nos.26/2B
and 26/3 of Thudiyalur Village, which was part of the land proposed for the inner ring
road in the Coimbatore Master Plan under G.O.Ms.No.661, Housing and Urban
Development Department dated 12.10.1994 under Section 28 of the Tamil Nadu Town
and Country Planning Act, 1971.
3. Though such a notification was issued in the year 1994, subsequently no
action has been taken on the part of the respondents to acquire the land in question
along with other lands which were reserved for public purpose under the Master Plan.
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As per the provisions of the Tamil Nadu Town and Country Planning Act (hereinafter
referred to as 'the Act'), if within three years period from the notification, the land in
question reserved for public purpose has not been acquired, under Section 38 of the
Act, it shall be deemed to have been released from such reservation and in that case,
the owner of the land concerned is entitled to get back the land or the land can be
released in favour of the owner of the land. Only in this context, with the aforesaid
facts as well as legal position, this writ petition has been filed with the aforesaid
prayer.
4. Mr.AR.L.Sundaresan, learned Senior Counsel appearing for the petitioners
has relied upon a number of judgments of this Court on the very same issue. In fact,
the learned Senior Counsel has relied upon a judgment of this Court reported in 2017
(1) MLJ 16 (S.Anand Vs. The Secretary, Housing and Urban Development
Department, Fort St. George, Chennai and others), where I had an occasion to
consider similar issue in respect of the very same notification of the year 1994.
5. Learned Senior Counsel would submit that, since the land belonged to the
petitioners, though has been subsequently sold to the private respondent herein, on
the date of the notification of the year 1994, the petitioners were the owners and
therefore, if the said lands have not been acquired for public purpose for which it has
been reserved under the said notification, within three years period, that shall be
released or the land shall be declared to be released to and in favour of the owners of
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W.P.No.417 of 2022
the land under Section 38 of the Act. Therefore, the prayer sought for in the writ
petition can be considered and granted, he contended.
6. Heard Mrs.V.Yamuna Devi, learned Special Government Pleader appearing
for the official respondents, who would not controvert the legal provisions and legal
position in this regard, especially the number of judgments on this point. In fact, in
respect of the very same notification, I had an occasion to consider this kind of prayer
in W.P.No.21048 of 2010 and the said writ petition was allowed by an order dated
02.12.2016, where I have passed the following order.
“ 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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W.P.No.417 of 2022
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) 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
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W.P.No.417 of 2022
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 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.
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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 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.
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Thereafter once such a land is reserved or alloted or designated having
approval the Government has every power 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 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
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W.P.No.417 of 2022
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. 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
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W.P.No.417 of 2022
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
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
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W.P.No.417 of 2022
In view of the above said factual situation, the writ 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 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
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W.P.No.417 of 2022
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 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
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W.P.No.417 of 2022
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 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
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W.P.No.417 of 2022
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.”
7. Since the issue has already been decided in more than one case and the
issue is in fact settled, and it has been brought to the notice of this Court that the
order passed in Anand's case which is cited supra has been accepted and the land in
question has been released, this Court feels that, the said legal position can very well
be applied to the facts of the present case, because the land in question here in the
case in hand has been reserved for public purpose under the very same notification.
8. In that view of the matter, this Court is inclined to dispose of this writ
petition with the following order.
● That the land in question owned by the petitioners in S.Nos.26/2B
and 26/3 of Tudiyalur Village which was part of the land proposed
for the inner ring road in the Coimbatore Master Plan under
G.O.Ms.No.661, Housing and Urban Development Department
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W.P.No.417 of 2022
dated 12.10.1994 is declared to be land released under Section 38
of the Tamil Nadu Town and Country Planning Act.
● As a sequel, the respondents 1 and 2 as well as the third
respondent shall take necessary steps to release the land to and in
favour of the petitioners within a period of four weeks from the
date of receipt of a copy of this order.
● It is made clear that once the land in question is released in favour
of the petitioners, since the same has already been transferred in
the name of the fourth respondent, subsequently the fourth
respondent shall establish and execute his right over the property
as the lawful owner.
9. With the above directions, this writ petition is allowed. No costs.
Consequently, connected miscellaneous petition is closed.
12.01.2022
Index : Yes/No
Internet : Yes/No
KST
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W.P.No.417 of 2022
R. SURESH KUMAR, J.
KST
To
1.The Secretary to Government
Housing and Urban Development Department
Fort St.George, Chennai – 600 009.
2.Coimbatore Local Planning Authority
Represented by its Member Secretary
Coimbatore.
3.The Commissioner
Coimbatore Corporation, Coimbatore.
W.P.No. 417 of 2022
12.01.2022
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