Madras High Court
R.Kalaiselvi vs The Secretary on 28 February, 2025
Author: J.Sathya Narayana Prasad
Bench: J.Sathya Narayana Prasad
W.P.No.1418 of 2025
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 28.02.2025
CORAM :
THE HONOURABLE MR. JUSTICE J.SATHYA NARAYANA PRASAD
Writ Petition No.1418 of 2025
R.Kalaiselvi ... Petitioner
Vs.
1.The Secretary,
Housing and Urban Development Department,
Fort St.George,
Chennai – 600 015.
2.The Director,
Tamil Nadu Town and Country Planning,
2,3,4 floor, CMDA Office, ESC Market Road,
Koyambedu,
Chennai – 600 092.
3.The Member Secretary/Deputy Director,
Coimbatore Local Planning Authority,
Door No.50, FCI Road, Gandhima Nagar,
Ganapathy, Coimbatore – 641 004. … Respondents
PRAYER: Writ Petition filed under Article 226 of Constitution of India
praying for issuance of Writ of Mandamus directing the third respondent to
declare that the petitioner's land comprised in S.F.No.223/2, Kandakamuthur
Village, Coimbatore Taluk, Coimbatore District measuring 2.35 acres is
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W.P.No.1418 of 2025
deemed to be released from the reservation of Section 38 of Tamil Nadu
Town and Country Planning Act, 1971 and consequently direct the third
respondent to pass appropriate orders for release of petitioner's land
comprised in S.F.No.223/2, Kandakamuthur Village, Coimbatore Taluk,
Coimbatore District measuring 2.35 acres.
For Petitioner : Mr.M.R.Dhalapathy Vignesh Kumar
For Respondents 1 to 3 : Mr.N.Naveen Kumar,
Government Advocate
ORDER
The petitioner has filed this petition seeking direction to the third
respondent to declare that the petitioner's land comprised in S.F.No.223/2,
Kandakamuthur Village, Coimbatore Taluk, Coimbatore District measuring
2.35 acres is deemed to be released from the reservation of Section 38 of
Tamil Nadu Town and Country Planning Act, 1971 and consequently direct
the third respondent to pass appropriate orders for release of petitioner's land
comprised in S.F.No.223/2, Kandakamuthur Village, Coimbatore Taluk,
Coimbatore District measuring 2.35 acres.
2. The case of the petitioner is that she is the absolute owner of the
property situated at S.F.No.233/2, Kandakamuthur Village, Coimbatore
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Taluk, Coimbatore District measuring 2.35 acres and approached the
respondents 2 & 3 for planning approval for forming a layout for area
measuring 0.76.78 hectares or 1.896 acres in the above referred survey
number. It is relevant to state that Public Park is alleged to be planned in the
said area and the said public park runs across the petitioner's land as per the
DD Plan of the year 2004. Till date, no acquisition had taken place and the
petitioner is in absolute possession of the same, therefore the petitioner is
requesting for deletion of scheme road as per Section 38 of the Town and
Country Planning Act, 1971. Hence, the petitioner has come forward with
the present writ petition.
3. Learned counsel for the petitioner would submit that the said plan
prepared in the year 1995, it was stated that the said land would be acquired
by the respondents as provided under the provision of Chapter IV of Town
and Country Planning Act, 1971 (herein after referred to as Act). However,
the Government had not taken any steps to acquire the land. It is also
informed to the petitioner that the proposal to form the road has not been
given effect to or implemented. It was also informed that under Section 28 of
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the Act, the Town Planning authority should have obtained approval from the
Government within three years from the date of the publication of the scheme
but, they have not done so. Therefore, the Government after having prepared
the master plan for Coimbatore Local Planning area and issued the same in
the Gazette notification in G.O.Ms.No.661, Housing and Urban Development
(UDIV) Department, dated 12.10.1994 has not done anything.
4. Learned counsel for the petitioner would submit that though such a
notification was issued under Section 30 of the Act, no follow-up action of
acquisition has been taken. Therefore, the petitioner had made representation
several times to the respondents to release the lands belonging to her as the
same is not acquired and no more public purpose is involved under the
deemed proviso viz., under Section 38 of the Act, land would be deemed to
be released from reservation, allotment or designation.
5. Learned counsel for the petitioner would then place reliance on the
similar orders passed by this Court, which are as follows:
a) In the case of A.Kondasamy Vs. The Director of Town & Country
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Planning, Office of the Directorate of Town and Country Planning, 2nd, 3rd
and 4th Floor, E & C Market Road, Koyambedu, Chennai ? 600 107 and
others in W.P.No.25243 of 2021 dated 29.11.2024.
b) In the case Alagirisamy Vs. The Director of Town & Country
Planning, 807, Anna Salai, Chennai, Chennai District and others in
W.P.No.27672 of 2022 dated 12.12.2022.
c) In the case of M/s.C.Vasanthadevi and another Vs. The Secretary,
Housing and Urban Development Department, Fort St.George, Chennai ? 600
015 and others in W.P.No.29069 of 2022 dated 12.12.2022.
d) In the case of V.Vijayalakshmi Vs. The Managing Director, Office
of Director Municipality, Chepauk, Near Anna Square, Chennai ? 600 005
and others in W.P.No.29297 of 2022 dated 12.12.2022.
e) In the case of S.Ponnusamy and others Vs. The Director of Town &
Country Planning, Office of Directorate of Town & Country Planning,
Second, Third and Fourth Floors, E & C Market Road, Koyambedu,
Chennai ? 600 107 and others in W.P.No.30168 of 2022 dated 12.12.2022.
f) In the case of Ramesh Chand and others Vs. The Commissioner,
Directorate of Town & Country Planning, Chengalvarayan Building, 4th
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Floor, 807, Anna Salai, Chennai ? 600 002 and others in W.P.No.31752 of
2022 dated 12.12.2022.
g) In the case of M.Shanmugharaj Vs. The Director of Town &
Country Planning, Office of Directorate of Town & Country Planning,
Second, Third and Fourth Floors, E & C Market Road, Koyambedu, Chennai
- 600 107 and others in W.P.No.30169 of 2022 dated 25.01.2023.
6. Heard the learned counsel on either side and perused the materials
available on record.
7. The orders relied on by the learned counsel for the petitioner in the
case of A.Kondasamy Vs. The Director of Town & Country Planning,
Office of the Directorate of Town and Country Planning, 2 nd, 3rd and 4th
Floor, E & C Market Road, Koyambedu, Chennai - 600 107 and others in
W.P.No.25243 of 2021, which held as follows:
''5?. 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 Gazette, the
concerned lands shall be deemed to be released from such
reservation. In the present case, the respondents had failed to
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take any steps to acquire the subject land therefore, by
operation of Section 38 of the Act, the scheme has lapsed.''
b) In the case Alagirisamy Vs. The Director of Town & Country
Planning, 807, Anna Salai, Chennai, Chennai District and others in
W.P.No.27672 of 2022, which held as follows:
“4. The main issue that has been urged before this Court
is that the detailed development plan 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 notice under the Tamil Nadu
Gazette.
5. 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 :
“11. As rightly pointed out by the learned counsel
appearing for the respondents/writ petitioner 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
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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.?”
6. 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 Gazette, 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 :
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).
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
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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.
7. In the present case, the detailed development plan was
notified under Section 37 of the Act in the year 2007. However,
the respondents failed to take any steps to acquire the land and
therefore, by operation of Section 38, the scheme lapsed.”
c) In the case of M/s.C.Vasanthadevi and another Vs. The
Secretary, Housing and Urban Development Department, Fort
St.George, Chennai – 600 015 and others in W.P.No.29069 of 2022, which
held as follows:
“4. The main issue that has been urged before this Court
is that the detailed development plan 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 notice under the Tamil Nadu
Gazette.
5. 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
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by virtue of Section 38 of the Tamil Nadu Town and Country
Planning Act. The relevant portions in the judgment are
extracted hereunder :
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.?
6. 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 Gazette, 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 :
1. M.Amsavalli v. Director of Town and Country
Planning reported in (2017) 2 CWC 418.
2. RM.Shanmuganathan v. Director of Town and
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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).
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
deemed to be released from such reservation, allotment or
designation.
7. In the present case, the detailed development plan was
notified under Section 37 of the Act in the year 2007. However,
the respondents failed to take any steps to acquire the land and
therefore, by operation of Section 38, the scheme lapsed.”
d) In the case of V.Vijayalakshmi Vs. The Managing Director,
Office of Director Municipality, Chepauk, Near Anna Square, Chennai –
600 005 and others in W.P.No.29297 of 2022, which held as follows:
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“4. The main issue that has been urged before this Court
is that the detailed development plan 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 notice under the Tamil Nadu
Gazette.
5. 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 :
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
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W.P.(MD) No.14456 of 2014 was also dismissed on
02.03.2020.?
6. 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 Gazette, 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 :
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).
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
deemed to be released from such reservation, allotment or
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designation.
7. In the present case, the detailed development plan
was notified under Section 37 of the Act in the year 2007.
However, the respondents failed to take any steps to acquire the
land and therefore, by operation of Section 38, the scheme
lapsed.”
e) In the case of S.Ponnusamy and others Vs. The Director of Town
& Country Planning, Office of Directorate of Town & Country Planning,
Second, Third and Fourth Floors, E & C Market Road, Koyambedu,
Chennai – 600 107 and others in W.P.No.30168 of 2022, which held as
follows:
“4. The main issue that has been urged before this Court
is that the detailed development plan 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 notice under the Tamil Nadu
Gazette.
5. 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 :
11. As rightly pointed out by the learned counsel
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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.?
6. 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 Gazette, 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 :
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)
https://www.mhc.tn.gov.in/judis ( Uploaded on: 06/03/2025 08:49:08 pm )
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).
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 deemed to be released from such reservation, allotment
or designation.
7. In the present case, the detailed development plan
was notified under Section 37 of the Act in the year 2007.
However, the respondents failed to take any steps to acquire the
land and therefore, by operation of Section 38, the scheme
lapsed.”
f) In the case of Ramesh Chand and others Vs. The Commissioner,
Directorate of Town & Country Planning, Chengalvarayan Building, 4th
Floor, 807, Anna Salai, Chennai– 600 002 and others in W.P.No.31752 of
2022, which held as follows:
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“4. Admittedly, though the scheme road was proposed to
be constructed, no steps have been taken by the respondents to
acquire the land as per Section 38 of the Tamil Nadu Town
Country Planning Act, which 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 deemed to be
released from such reservation, allotment or designation.”
5. Having regard to the above section and as steps has
not been taken to acquire the land within three years as per the
above section, the respondent shall, without reference to the
original proposal of the ring road, is directed to consider the
representation of the petitioners on its own merits.”
g) In the case of M.Shanmugharaj Vs. The Director of Town &
Country Planning, Office of Directorate of Town & Country Planning,
Second, Third and Fourth Floors, E & C Market Road, Koyambedu,
Chennai – 600 107 and others in W.P.No.30169 of 2022, which held as
follows:
“4. Learned counsel for the petitioner would submit that
only an extent of 4.85 acres have been developed as a layout.
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While developing the layout, necessary lands have been gifted
by gift deed bearing No.10974/2019. According to him, as far as
the land already gifted in respect of a layout forming 4.85 acres,
he is not claiming any right over the gifted properties. Only he
seeks the declaration in respect of the remaining properties as
the acquisition has not happened within a period of three years,
as contemplated under Section 38 of Tamilnadu Town and
Country Planning Act, 1971.
5. Learned counsel for the respondents would submit
that since the lands have already been gifted, the petitioner
cannot have any right over the property. The entire extent of
7.04 acres was shown in a detailed development plan No.8 of
the respondents for the purpose of constructing Elementary
School, High school and Play ground. Though the declaration
has been made on 15.07.1992, the land has not been acquired
within a period of three years.
6. It is relevant to note that Section 38 of Tamilnadu
Town and Country Planning Act, 1971, 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 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.”
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7. 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 remaining area other than the layout already
developed shall be released from the development plan. It is
also made clear that in future, if the Government intends to
acquire the land for any other purposes, this order will not bar
for the Government in view of the provision of Land Acquisition
Act. Similarly, any application is filed or pending for
regularisation of 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.”
8. In view of the plethora of decisions of this Court as had 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.
9. 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 comprised in S.F.No.223/2, Kandakamuthur Village,
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Coimbatore Taluk, Coimbatore District measuring 2.35 acres, shall deemed
to be released from such reservation or allotment or designation under
Section 38 of the Act, 1971 and consequently, the third respondent is directed
to pass appropriate orders for release of petitioner's land comprised in
S.F.No.223/2, Kandakamuthur Village, Coimbatore Taluk, Coimbatore
District measuring 2.35 acres within a period of four weeks from the date of
receipt of a copy of this order.
10. This writ petition is disposed of with the above observation and
direction. No costs.
28.02.2025
vm
Index : Yes/No
Speaking Order : Yes/No
Neutral Citation : Yes/No
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J.SATHYA NARAYANA PRASAD,J.
vm
To:
1.The Secretary,
Housing and Urban Development Department,
Fort St.George,
Chennai – 600 015.
2.The Director,
Tamil Nadu Town and Country Planning,
2,3,4 floor, CMDA Office, ESC Market Road,
Koyambedu,
Chennai – 600 092.
3.The Member Secretary/Deputy Director,
Coimbatore Local Planning Authority,
Door No.50, FCI Road, Gandhima Nagar,
Ganapathy, Coimbatore – 641 004.
https://www.mhc.tn.gov.in/judis ( Uploaded on: 06/03/2025 08:49:08 pm )
28.02.2025
https://www.mhc.tn.gov.in/judis ( Uploaded on: 06/03/2025 08:49:08 pm )
