Madras High Court

K. Balasubramaniam vs The Secretary on 3 March, 2023

Writ Petition No.6656 of 2023

IN THE HIGH COURT OF JUDICATURE AT MADRAS

Dated: 3/3/2023

CORAM

THE HONOURABLE MR.JUSTICE N. SATHISH KUMAR

Writ Petition No.6656 of 2023
and
W.M.P.No.6720 of 2023

1. K. Balasubramaniam
2. Mohanageetha
3. K. Sakthivel
4. C. Thangamani
5. Nithya Balasubramaniam
6. C. Kavitha ... Petitioners

1. The Secretary
Housing and Urban Development Department
Fort St. George
Chennai 600 009.

2. The Director
Town Planning
807 Anna Salai
Chennai 600 002.

3. The Member Secretary
Coimbatore Local Planning Authority
Corporation Shopping Complex
Raju Naidu Street, Tatabad
Sivananda Colony
Coimbatore 641 012.
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Writ Petition No.6656 of 2023

4. The Commissioner
Coimbatore Corporation
Town Hall
Coimbatore 641 001. ... Respondents

PRAYER : Petition filed under Article 226 of the Constitution of India

praying for the issuance of a writ of declaration to declare the lands of the

petitioner's land measuring an extent of 2 acres being the eastern portion

Survey Nos.207 and 208/1 in Singanallur Village Coimbatore Talk deemed

to be released from the reservation for the formation of the proposed road in

Detailed Development Plan No.35 in Map No.3 dated 3/1/1994 as per

Section 38 of Town and Country Planning Act, 1971.

For Petitioners ... Mr.C.Jagadish

For respondents ... Mrs.R.Anitha
Special Government Pleader
for R.R.1 and 2.

Mr.Ferdinand
for R.R.3 and 4
-----
ORDER

This writ petition has been filed to declare the lands of the petitioner's

land measuring an extent of 2 acres being the eastern portion Survey

Nos.207 and 208/1 in Singanallur Village Coimbatore Talk deemed to be

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released from the reservation for the formation of the proposed road in

Detailed Development Plan No.35 in Map No.3 dated 3/1/1994 as per

Section 38 of Town and Country Planning Act, 1971.

2. It is the contention of the writ petitioners that the lands of the

petitioners though was approved in Detailed Development Plan No.35, the

property has not been acquired till date and remains in the petitioners

possession and enjoyment. Hence, it his contention that as per Section 37 of

Tamil Nadu Town and Country Planning Act, 1971, the planning authority

devise any plan at the disposal of any private person required for any

purpose for detailed development plan, same can be acquired by the State

Government by invoking the provision of the Land Acquisition Act, 1894.

Whereas, Section 38 of the said Act contemplates, if such acquisition is not

made within a period of three years from the date of publication of the

detailed development plan, the land will be deemed to have been released

from such reservation from the detailed development plan. Hence, according

to him, no such acquisition has been made within a period of three years,

hence, the writ petition.

3. Heard Mr.C.Jagadish, learned counsel for the petitioners. https://www.mhc.tn.gov.in/judis Page No:3/10 Writ Petition No.6656 of 2023

4. Mrs.R.Anitha, learned Special Government Pleader takes notice for

the respondents 1 and 2 and Mr.Ferdinand, learned counsel for the

respondents 3 and 4.

5. The main issue that has been urged before this Court is that the

detailed development plan in G.O.Ms.No.661 dated 12.10.1994, has lapsed

as per Section 38 of the Tamil Nadu Town and Country Planning Act, since

the land has not been acquired within a period of three years from the date of

publication of the notification in Government Order, G.O.Ms.No.661 dated

12.10.1994.

6. It is not necessary for this Court to dwell much on the entire

allegation in the Writ Petition, since for the very same detailed development

scheme, a Division Bench of this Court in W.A (MD) No.485 of 2020 has

held that the scheme had lapsed by virtue of Section 38 of the Tamil Nadu

Town and Country Planning Act. The relevant portions in the judgment are

extracted hereunder :-

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“11. As rightly pointed out by the learned counsel appearing for the respondents/writ petitioners that the counter affidavit proceeds on the merits of the claim and in no way deal with deemed lapse and in the considered opinion of this Court, the learned Judge, on correct appreciation of facts and by applying the legal position as enumerated in the above said judgment, allowed the writ petition. This Court, on going through the reasons assigned in the impugned order, is of the considered view that there is no infirmity or error apparent on the face of the record for the reason assigned by the learned Single Judge for allowing the writ petition and finds that the writ appeal lacks merits.

12. It is also brought to the knowledge of this Court that the writ appeal filed by the official respondents in WA(MD) No.340 of 2020, against the order dated 27.02.2017 in W.P.(MD) No.14456 of 2014 was also dismissed on 02.03.2020.”

7. This Court has consistently held that if the land has not been

acquired within a period of three years from the date of publishing the

detailed development plan in the Government Order, the concerned lands

shall be deemed to be released from such reservation. It will be beneficial to

provide the details of the cases, wherein this Court had reached such a

conclusion :

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1. M.Amsavalli v. Director of Town and Country Planning reported in (2017) 2 CWC 418.

2. RM.Shanmuganathan v. Director of Town and Country Planning reported in (2018) 2 CWC 20.

3. W.P.(MD) No.5652 of 2019 (LKS Mohammed Meera Mohaideen v. Director of Town and Country Planning)

4. W.A.(MD) No.485 of 2020 (The Director of Town and Country Planning and another v. Muthu and others) and

5. W.P.(MD) No.166 of 2021 (Nagendran v. The Director of Town and Country Planning).

8. Section 38 of the Tamilnadu Town and Country Planning Act reads

as follows :

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

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

9. In the present case, the detailed development plan was notified

under Section 37 of the Act in the year 1992. However, the respondents

failed to take any steps to acquire the land and therefore, by operation of

Section 38, the reservation is released from the detailed plan.

10. It is made clear that mere releasing of the lands, as per Section 38

will not bar the authorities to pass orders strictly in terms of the Rules. The

lapse under Section 38 will not affect the Rule 4[5] of Tamil Nadu

Regularization of Unapproved Layouts and Plot Rules, 2017.

11. However, it is admitted case that the land has not been acquired

within a period of three years. In such view of the matter, as per Section 38

of the Tamilnadu Town and Country Planning Act, the petitioners land shall

be released from the development plan. It is also made it clear that in future,

if the Government intends to acquire the land for any purpose, this order will

not be a bar for the Government in view of the provision of Land Acquisition

Act. Similarly, any application is filed or pending for regularization of

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unapproved layout, such application shall be dealt as per Tamilnadu Town

and Country Planning Act, 1971, on its own merits, strictly in terms of the

Rules.

12. Accordingly, this writ petition is allowed. No costs.

Consequently, the connected Miscellaneous Petition is closed.

3/3/2023

Index : Yes / No Internet: Yes Speaking/non speaking order

mvs.

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1. The Secretary Housing and Urban Development Department Fort St. George Chennai 600 009.

2. The Director Town Planning 807 Anna Salai Chennai 600 002.

3. The Member Secretary Coimbatore Local Planning Authority Corporation Shopping Complex Raju Naidu Street, Tatabad Sivananda Colony Coimbatore 641 012.

4. The Commissioner Coimbatore Corporation Town Hall Coimbatore 641 001.

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N. SATHISH KUMAR, J

mvs.

W.P.No.6656 of 2023

3/3/2023

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