Madras High Court
R.Rajagopalan vs The Commissioner on 19 October, 2022
Author: C.Saravanan
Bench: C.Saravanan
W.P.Nos.17363 & 18659 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved On 26.08.2022
Pronounced On 19.10.2022
CORAM
THE HON'BLE MR.JUSTICE C.SARAVANAN
W.P.Nos.17363 & 18659 of 2022
and
W.M.P.Nos.16682, 16683, 17999,
18000 & 18003 of 2022
W.P.No.17363 of 2022
1.R.Rajagopalan
2.R.Harini ... Petitioners
Vs.
1.The Commissioner,
Greater Chennai Corporation,
Rippon Building, Chennai – 600 003.
2.The Executive Engineer,
Zonal Office – X,
Greater Chennai Corporation,
No.64, N.S.K.Salai,
Kodambakkam, Chennai – 600 024.
3.Assistant Executive Engineer,
Zonal Office – X,
Greater Chennai Corporation,
No.64, N.S.K.Salai,
Kodambakkam, Chennai – 600 024.
______________
https://www.mhc.tn.gov.in/judis
Page No 1 of 29
W.P.Nos.17363 & 18659 of 2022
4.The Member Secretary,
Chennai Metropolitan Development Authority,
No.1, Gandhi Irwin Road,
Egmore, Chennai – 600 008. ... Respondents
Writ Petition filed under Article 226 of the Constitution of India, for
issuance of a Writ of Certiorarified Mandamus, to call for the records of
the third respondent's demand dated 07.06.2022 in
W.D.C.No.PPA/WDCN10/05618/2022 and quash the same and
consequently direct the respondents to grant Planning Permission and
Building approval in respect of the immovable property bearing Door
No.93, Arya Gowda Road, West Mambalam, Chennai – 600 033,
consequent to the petitioner's application for Plan Permit Approval and
submission No.PPA/WDCN10/05618/2022, dated 27.05.2022 without
insisting for a Gift Deed by the petitioners in favour of Greater Chennai
Corporation.
For Petitioners : Mr.S.R.Raghunathan
for Mr.V.Anil Kumar
For R1 to R3 : Mrs.P.T.Ramadevi
Standing Counsel
For R4 : Mr.Y.Bhuvanesh Kumar
Standing Counsel
W.P.No.18659 of 2022
B.Rajeswari ... Petitioner
Vs.
______________
https://www.mhc.tn.gov.in/judis
Page No 2 of 29
W.P.Nos.17363 & 18659 of 2022
1.The Member Secretary,
Chennai Metropolitan Development Authority,
No.1, Gandhi Irwin Road,
Egmore, Chennai – 600 008.
2.The Commissioner,
Greater Chennai Corporation,
Rippon Building, Chennai – 600 003.
3.The Assistant Executive Engineer, [T.P.]
Corporation of Chennai,
No.266, T.H.Road, Chennai – 600 021. ... Respondents
Writ Petition filed under Article 226 of the Constitution of India, for
issuance of a Writ of Certiorarified Mandamus, to call for the records of
the third respondent in letter No.W.D.C.No.PPA/WDCN04/05682 /2022
dated 21.06.2022 and quash the same in so far as condition No.2 for
production of Gift Deed for road widening and further direct the
respondent to forthwith issue planning permission to the petitioner herein
in respect of the application in PPA/WDCN04/05682/2022 dated
30.05.2022 for the property bearing Door No.New No.1059, Old No.353,
Block No.41, T.S.No.257/1, Thiruvottiyour High Road, Old
Washermenpet, Tondiarpet, Chennai – 600 021 without insisting to
produce Gift Deed for road widening.
For Petitioner : Mrs.Hema Murali Krishnan
For R1 : Mr.Y.Bhuvanesh Kumar
Standing Counsel
For R2 & R3 : Mrs.P.T.Ramadevi, Standing Counsel
______________
https://www.mhc.tn.gov.in/judis
Page No 3 of 29
W.P.Nos.17363 & 18659 of 2022
COMMON ORDER
By this common order, both Writ Petitions are being disposed of.
2. In W.P.No.17363 of 2022, the petitioner has challenged the impugned communication dated 07.06.2022 bearing reference W.D.C.No.PPA/WDCN10/05618/2022 of the third respondent Assistant Executive Engineer, whereby, the petitioner has been informed that “the site falls under road widening as per CMDA land use map hence produce draft for gift deed in road widening portion”.
3. The petitioner's application for planning permission dated 27.05.2022 to put up a new residential construction at T.S.No.20/56, Block No.48 of Puliyur Village, Greater Chennai Corporation, Division – 135, Zone – 10 has thus not been processed pending production of a gift deed by the petitioner.
4. In W.P.No.18659 of 2022, the petitioner has challenged the impugned communication dated 21.06.2022 bearing reference W.D.C.No.PPA/WDC.No.04/05682/2022 of the third respondent ______________ https://www.mhc.tn.gov.in/judis Page No 4 of 29 W.P.Nos.17363 & 18659 of 2022 Assistant Executive Engineer insofar as it calls upon the petitioner to produce a gift deed for road widening purpose.
5. The petitioner has proposed to demolish and reconstruct a new residential building at Door No:- New No.1059, Old No.352, Block No.41, Plot No:- T.S.No.257/11, Thiruvottiyur High Road, Old Washermenpet, Tondiarpet, Chennai – 600 021.
6. The challenge to the impugned communications is primarily based on the strength of Section 37 of the Town and Country Planning Act, 1971.
7. The petitioner in W.P.No.17363 of 2022 purchased a land measuring an extent of 1 Ground and 672 sq.ft. (3,072 sq.ft.) from one Mr.S.Narayanan vide Sale Deed dated 11.10.2021. The petitioner is said to be in possession of the said property and has decided to put up a residential building (Ground +1 Floor).
8. Therefore, the petitioner approached the second respondent Executive Engineer of the Town and Country Planning and filed an ______________ https://www.mhc.tn.gov.in/judis Page No 5 of 29 W.P.Nos.17363 & 18659 of 2022 application dated 27.05.2022 along with necessary documents and blueprints of the plan for the proposed construction.
9. The blueprint of the plan prepared leaves a portion of land measuring an extent of 9.9mtrs x 1.9mtrs for road widening purpose. The second and third respondents inspected the said property and have issued the impugned communication dated 07.06.2022 bearing reference W.D.C No. PPA/WDCN10/05618/2022.
10. In the impugned communication dated 07.06.2022, the petitioner has been asked to gift the land to the first respondent Commissioner of Chennai Corporation free of cost by a gift deed, as the site is meant for road widening as per CMDA land use map.
11. The petitioner in W.P.No.18659 of 2022 is said to be in possession of a land measuring an extent of 1858 sq.ft and is currently residing in the said property. It is stated that in the year 2018, the Chennai Metro Rail Limited (CMRL) acquired 538 sq.ft of land from the petitioner. Thus, the total extent of the land in the hands of the said petitioner is 1320 ______________ https://www.mhc.tn.gov.in/judis Page No 6 of 29 W.P.Nos.17363 & 18659 of 2022 sq.ft.
12. The petitioner has decided to put a new construction and had approached the second respondent Executive Engineer and filed an application dated 30.05.2022 before the appropriate planning authority namely, the third respondent Assistant Executive Engineer. The said third respondent inspected the property and has passed the impugned order dated 21.06.2022.
13. It is further submitted that the petitioner in W.P.No.17363 of 2022 has also left out 1.68 sq.mts of land which has been reserved for road widening purpose in terms of the second master plan dated 02.09.2008 vide G.O.Ms.No.190, Housing and Urban Development Department.
14. The learned counsel for the petitioner submits that the petitioner in W.P.No.18659 of 2022 has left out 33.84 sq.mts of land for the purpose of road widening in terms of the second master plan. It is further submitted that the petitioner cannot be forced to gift the land on the strength of Rule 35(19) of the Tamil Nadu Combined Development and Building Rules, ______________ https://www.mhc.tn.gov.in/judis Page No 7 of 29 W.P.Nos.17363 & 18659 of 2022 2019.
15. It is submitted that even as per the Tamil Nadu Combined Development and Building Rules, 2019, Transfer of Development Rights (TDR) has to be in compliance with the requirements of the Act. It is further submitted that the petitioner's proposed construction for a residential building complies with all the requirements such as side set back, rear set back, plot coverage etc. The application along with the planning permission application is detailed below:-
Sl. Parameter Min. Provided Reasons
No. required/ for Short
Max. Provision
permissible if any
1 Plot extent - 279m2
2 Plot frontage - 9.9m
3 Floor Space index 2% 1.09%
4 Plot coverage - 61.7%
5 Height of the building 12m 6.9m
6 S.A + B.L (if prescribed in - 6.9m
DR)
7 Front Set back 3m 3m
8 Rear set back Nil 1.5m
9 Side set back 1m 1m
10 Passage width/Road width - 18m
______________
https://www.mhc.tn.gov.in/judis
Page No 8 of 29
W.P.Nos.17363 & 18659 of 2022
Sl. Parameter Min. Provided Reasons
No. required/ for Short
Max. Provision
permissible if any
11 Splay - -
12 Parking - 3
13 Height of basement floor Max 1.2 above
above ground level ground level
14 Headroom height of stilt 2.20m from
ground level
15 Installation of electrical H.P H.P
motors
16. It is therefore submitted that the option available to the planning authority under Section 37 of the Tamil Nadu Town and Country Planning Act, 1971 is to purchase the land entering into an agreement or acquire lands specified in the development plan.-
a) by agreement, by paying an amount agreed to; or
b) in lieu of any such amount, by granting the landowner the transfer of development rights against the area of land surrendered free of cost and free from all encumbrances, and also further additional floor space index or transfer of development rights against the development or construction of the amenity on the surrendered land and his cost, in such manner as may be prescribed; or
c) by making an application to the Government for acquiring such land under the Right to Fair compensation and Transparency in Land ______________ https://www.mhc.tn.gov.in/judis Page No 9 of 29 W.P.Nos.17363 & 18659 of 2022 Acquisition, Rehabilitation and Resettlement Act, 2013 (Central Act 30 of 2013), and the land (together with the amenity, if any, so developed or constructed) so acquired by agreement or by grant or floor space index and additional floor space index in the form of transfer of development rights under this Section or under the said Act, as the case may be, shall vest absolutely free from all encumbrances in the appropriate planning authority.”
17. It is further submitted that the petitioner cannot be forced either to gift the land or accept Transfer of Development Rights (TDR) in lieu of the amount. It is submitted that the petitioners have no intention of trading the Transfer of Development Rights (TDR) which is to be proposed in given to the petitioner in terms of the provisions of the Tamil Nadu Combined Development and Building Rules, 2019.
18. It is further submitted that the only option available to the respondents is to acquire the land under the provisions of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 as is contemplated under Section 37(1)(c) of the Tamil Nadu Town and Country Planning Act, 1971. ______________ https://www.mhc.tn.gov.in/judis Page No 10 of 29 W.P.Nos.17363 & 18659 of 2022
19. In this connection, a reference was made to Section 36 of the Tamil Nadu Town and Country Planning Act, 1971, wherein, it has been stated for any land required, reserved or designated in a regional plan, master plan, detailed development plan or a new town development plan, as the case may be, shall be deemed to be land needed for a public purpose within the meaning of the Land Acquisition Act, 1894 (Central Act I of 1894) and may be acquired under the said Act as modified in the manner provided in this Act.
20. The learned counsel for the petitioner submits that the issue is now squarely covered by the decision of this Court in the case of Hansaram Vs. The Commissioner, Greater Chennai Corporation, Chennai and another, in W.P.No.1185 of 2019 dated 24.01.2019, which in turn follows the earlier order passed by this Court in W.P.No.148 of 2014 etc batch.
21. The learned standing counsel for the first to third respondents submits that a Writ Appeal is now pending before the Hon'ble Division Bench of this Court in W.A.No.3663 of 2019. ______________ https://www.mhc.tn.gov.in/judis Page No 11 of 29 W.P.Nos.17363 & 18659 of 2022
22. The writ petition is opposed by the respondents stating that the demand under the impugned communication is in line with the provisions of Tamil Nadu Combined Development and Building Rules, 2019 framed under Sections 32(4) and 122 of the Tamil Nadu Town and Country Planning Act, 1971 read with other provisions of various enactments applicable to other local areas.
23. It is submitted that the Tamil Nadu Combined Development and Building Rules, 2019 was notified by the Government in G.O.Ms.No.18 Municipal Administration and Water Supply (MA.I) Department dated 04.02.2019.
24. That apart, it is submitted that the first master plan was dated 05.08.1975 vide G.O.Ms.No.190 Housing and Urban Development Department which has been now substituted by the subsequent master plan dated 02.09.2018.
25. It is submitted that in terms of Section 32 of the Tamil Nadu ______________ https://www.mhc.tn.gov.in/judis Page No 12 of 29 W.P.Nos.17363 & 18659 of 2022 Town and Country Planning Act, 1971 where the regional plan, master plan or new town development plan approved under section 28 may, at any time, be varied or revoked by a subsequent regional plan, master plan or new town development plan, as the case may be, prepared and approved under this Act.
26. The learned counsel for the CMDA on the other hand would submit that though orders have been passed in the context of the earlier development Control Rule, which were in force prior to the notification of Tamil Nadu Combined Development and Building Rules, 2019, issue is now pending before the Hon'ble Division Bench of this Court in W.A.No.3663 and 4345 of 2019 and therefore a decision in these Writ Petitions filed by these petitioners may be deferred. A reference was made to para 12 of the Counter wherein it has been stated:-
“12.I respectfully submit that in similar cases before the Hon'ble High Court, Madras had passed an order directing the Corporation to obtain an undertaking instead of Gift deed, observing the entitlement of compensation for the petitioner therein; this Corporation had preferred an appeal which is pending before the Hon'ble Division Bench ______________ https://www.mhc.tn.gov.in/judis Page No 13 of 29 W.P.Nos.17363 & 18659 of 2022 in W.A.No.3663 and 4345 of 2019. I further submit that there are similar writ petitions of same nature where the Rule 26(22) of the DR is challenged in W.P.No.32072 of 2019, W.P.No.30904 of 2015, W.P.No.34926 of 2016, W.P.Nos.4782 and 24725 of 2017 are pending before the Hon'ble Division Bench of this Court and this writ petition may also be tagged along with the above mentioned cases to avoid multiple adjudications.”
27. The learned standing counsel for the first to third respondents on the other hand referred to the decision of this Court in Mrs.Lakshmi Ranganathan Vs. The Commissioner Corporation of Chennai Office at Ribbon Building, Periyamet, Chennai - 600 003 and others, in W.P.No.8863 of 2021 vide dated 18.08.2021, wherein, decision of this Court in R.Rangarajan and another Vs The Commissioner, Corporation of Chennai, Chennai and others, in W.P.No.5790 of 2015, dated 04.03.2015 was followed.
28. By way of rejoinder, the learned counsel for the petitioner submits that after Tamil Nadu Combined Development and Building Rules, 2019 came into force a similar issue come up before this Court in W.P.No.8863 of 2021 which was disposed on 18.08.2021 favourably in ______________ https://www.mhc.tn.gov.in/judis Page No 14 of 29 W.P.Nos.17363 & 18659 of 2022 favour of the petitioner therein.
29. I have considered the arguments advanced by the learned counsel for petitioner in the respective Writ Petitions and the learned counsel for the respondents in the respective Writ Petitions.
30. The details of the land of the respective petitioners and the applications filed by them before the Planning Authority are as under:-
W.P.No. Name of the Extent
Date of Date of Area left out
Applicant/ the Application rejection of by the
petitioner Application petitioner for
road widening
17363/22 R.Rajagopal 3072 sq.ft 27.05.2022 07.06.2022 16.73 sq.mts.
(180.08 sq.ft.) 18659/22 B.Rajeshwari 1320 sq.ft * 30.05.2022 21.06.2022 33.84 sq.mts.
(359.4 sq.ft.)
* Total extent - 1858 sq.ft.
Less: land acquired by Central Metro Rail Limited - 538 sq.ft.
--------------
- 1320 sq.ft.
31. Both the petitioners have been called upon to produce Gift Deeds of land for road widening purpose. As far as the petitioner in W.P.No.17363 of 2022 is concerned, the reasons given in the impugned order dated 07.06.2022 is that the site falls under the road widening as per ______________ https://www.mhc.tn.gov.in/judis Page No 15 of 29 W.P.Nos.17363 & 18659 of 2022 CMDA land use map and hence the petitioner has been called upon to produce a “Gift Deed” for the road widening. In other words, the petitioner has been called upon to produce Gift Deed for road widening.
32. As far as the petitioner in W.P.No.18659 of 2022 is concerned, the petitioner has been called upon to produce a copy of registered Partition Deed document between Subramanian and Others and also to produce a Gift Deed for road widening portion. In other words, the petitioner has been called upon to produce Gift Deed for road widening.
33. The extent of the land which has to be gifted by the respective petitioners has not been specifically mentioned in the impugned order. It is assumed that the area that has been left out in the blue print of the plans submitted by the respective petitioners represents the area that is meant to be gifted in the impugned communications.
34. The point for consideration in these Writ Petitions is whether under the provisions of the Tamil Nadu Town and Country Planning Act, 1971 and the Tamil Nadu Combined Development and Building Rules, ______________ https://www.mhc.tn.gov.in/judis Page No 16 of 29 W.P.Nos.17363 & 18659 of 2022 2019, the respective petitioners can be forced to gift the lands earmarked for road widening purpose?
35. Under Section 37 of the Tamil Nadu Town and Country Planning Act, 1971, the “Appropriate Planning Authority” may acquire land required, reserved or designated in the plan, regional plan, the master plan, the detailed development plan or the new town development plan, or under a land pooling area development scheme for the development or redevelopment or improvement of area within the jurisdiction of the planning authority.
36. Section 37 of the Tamil Nadu Town and Country Planning Act, 1971 is reproduced below:-
37. Power to purchase or acquire lands specified in development plan.-
(1) Where after the publication of the notice in the Tamil Nadu Government Gazette of preparation of a regional plan, master plan, detailed development plan new town development plan, or a land pooling area development scheme for the development or redevelopment or improvement of area within the jurisdiction of a planning authority, any land is ______________ https://www.mhc.tn.gov.in/judis Page No 17 of 29 W.P.Nos.17363 & 18659 of 2022 required, reserved or designated in such plan, the appropriate planning authority may acquire the land.
(a) by agreement, by paying an amount agreed to; or
(b) in lieu of any such amount, by granting the landowner the transfer of development rights against the area of land surrendered free of cost and free from all encumbrances , and also further additional floor space index or transfer of development rights against the development or construction of the amenity on the surrendered land at his cost, in such manner as may be prescribed ;or
(c) by making an application to the Government for acquiring such land under the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013( Central Act 30 of 2013) and the land ( together with the amenity, if any, so developed or constructed) so acquired by agreement or by grant of floor space index and additional floor space index in the form of transfer of development rights under this section or under the said Act, as the case may be, shall vest absolutely free from all encumbrances in the appropriate planning authority.
(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 acquire the said land by following the procedure laid down in the right to fair compensation and transparency in land ______________ https://www.mhc.tn.gov.in/judis Page No 18 of 29 W.P.Nos.17363 & 18659 of 2022 acquisition, rehabilitation and resettlement Act 2013 (Central Act 30 of 2013)
37. As per Section 35A of the Tamil Nadu Town and Country Planning Act, 1971, where an area is required by the planning authority for public purpose and the owner of any site or land which comprises such area, owner of the land surrenders free of cost and hands over the possession of the same to Appropriate Planning Authority free from all encumbrances or maintains the land or restricts development on the land as per the requirement of the Government, the Appropriate Planning Authority may permit the Transfer of Development Rights in proportion to the land area surrendered or the restriction placed on development.
38. Section 35A of the Tamil Nadu Town and Country Planning Act, 1971 reads as under:-
35-A. Transfer of development rights.- (1) Where any area is required by a Planning Authority for a public purpose and the owner of any site or land which comprises such area, surrenders it free of cost and hands over possession of the same to the Planning Authority free from encumbrances, or maintains the land or restricts development on the ______________ https://www.mhc.tn.gov.in/judis Page No 19 of 29 W.P.Nos.17363 & 18659 of 2022 land as per the requirement of the Government, the Planning Authority may permit the transfer of development rights in proportion to the land area surrendered or the restrictions placed on developments in the manner prescribed.
(2) The development rights so permitted under sub-
section (1) may be utilised either on the remaining portion of the area after the surrender, if feasible, or at any other location in the State equivalent in value of land, subject to such conditions as may be prescribed, either by the person surrendering the land or suffering the restriction or any other person to whom the original allottee of the development rights has transferred such rights.
39. Section 37(1) prescribes the exact mode of acquisition. There are only two options under Section 37(1), though there are three sub- clauses to Section 37(1) of the Tamil Nadu Town and Country Planning Act, 1971. Sub clause (a) and (b) part of the same option as the expression used in sub-clause (b) is “any such amount”.
40. Section 45-A of the Tamil Nadu Town and Country Planning Act, 1971, defines the expression “Transfer of Development Rights” which reads as under:
“Section 45-A:- “transfer of development rights” ______________ https://www.mhc.tn.gov.in/judis Page No 20 of 29 W.P.Nos.17363 & 18659 of 2022 means compensation in the form of additional floor space index or development rights, which shall entitle the owner for construction of additional built- up area, subject to such rules and regulations as the Government or an Authority under this Act may prescribe and the floor space index credit shall be issued in such form as may be prescribed.”
41. Thus, under Section 37 of the Tamil Nadu Town and Country Planning Act, 1971, there are only two modes for acquiring such land, ie. either by purchasing under an agreement or acquiring the land. They are as under:-
i. By an agreement, by paying an amount agreed to; or ii. by making an application to the Government for acquiring such land under the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (Central Act 30 of 2013) and the land (together with the amenity, if any, so developed or constructed) so acquired by agreement or by grant of floor space index and additional floor space index in the form of transfer of development rights under this section or under the said Act, as the case may be, shall vest absolutely free from all encumbrances in the appropriate planning authority.
42. Instead of paying an amount, the appropriate planning authority can grant to the landowner a Transfer of Development Rights (TDR) against the area of land surrendered free of cost and free from all ______________ https://www.mhc.tn.gov.in/judis Page No 21 of 29 W.P.Nos.17363 & 18659 of 2022 encumbrances, and also further additional floor space index or transfer of development rights against the development or construction of the amenity on the surrendered land at his cost, in such manner as may be prescribed.
43. To give effect to the above scheme, Rule 48 has been envisioned under the Tamil Nadu Combined Development and Building Rules, 2019. Rule 48 of the Tamil Nadu Combined Development and Building Rules, 2019 reads as under:-
48. Transferable Development Rights.— (1) In certain circumstances, the development potential of the whole or a part of the plot or site may be separated from the land itself and may be made available to the land owner in the form of Transferable Development Rights (TDR) excepting in the case of existing or retention users, or any compulsory reservation of space for public purpose or recreational use or EWS or social housing etc. in the cases of subdivisions or layouts or Non High Rise Buildings or or High Rise Buildings or such other developments prescribed in these rules.
(2) Transferable Development Rights (TDR) shall apply to cases, where a private land is required for-
i. any road widening or new road formation as proposed and notified by the local body or the ______________ https://www.mhc.tn.gov.in/judis Page No 22 of 29 W.P.Nos.17363 & 18659 of 2022 Government department or agency ii. any traffic and transport infrastructure development such as bus stops or Bus stands, metro rail, Bus Rapid Transits System etc. iii. any other urban infrastructure development such as water supply, sewerage, drainage, electricity, education, health, notified by the State Government Department or Government Agency or local body.
(3) These rights may be made available based on the provisions prescribed by the Government from time to time.
44. Thus, wherever there is a proposal to purchase the land by an agreement by paying an amount agreed upon, the appropriate planning authority can, instead of paying such amount to the landowner, give Transfer of Development Rights Certificate (TDRC) against the area of land surrendered free of cost and free from all encumbrance or give additional floor space index for the Development or Construction of the amenity on the surrendered land at his cost, in such manner as may be prescribed.
45. The only alternate under Section 37(1)(c) of the Act is to acquire the said land by following the procedure laid down in the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and ______________ https://www.mhc.tn.gov.in/judis Page No 23 of 29 W.P.Nos.17363 & 18659 of 2022 Resettlement Act, 2013. Section 37(1)(c) of the Act empowers the Government to compulsorily acquire land under the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act 2013, (Central Act 30 of 2013). It is for this purpose Section 36 of the Tamil Nadu Town and Country Planning Act, 1971 has been provided. It reads as under:-
36.Compulsory acquisition of land needed for development plan.
Any land required, reserved or designated in a Regional Plan, Master Plan, [Detailed Development Plan, New Town Development Plan or a Land Pooling Area Development Scheme] for the development or re-development or improvement of the area within the jurisdiction of a planning authority, as the case may be, shall be deemed to be the land needed for a public purpose within the meaning of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (Central Act 30 of 2013) and may be acquired under the said Act.
46. There is no choice with the respondent or the appropriate Planning Authority to insist gifting of land. Only when there is an agreement for purchase of land is entered into, instead of paying any amount, TDR can be given. It cannot however be forced upon an applicant if there is no agreement.
______________ https://www.mhc.tn.gov.in/judis Page No 24 of 29 W.P.Nos.17363 & 18659 of 2022
47. There is no provision for gifting of the land under the provisions of the Tamil Nadu Town and Country Planning Act, 1971, as it stands amended. or under the provisions of the Tamil Nadu Combined Development and Building Rules, 2019.
48. In absence of any mutual agreement for transfer of the land meant for aforesaid purpose, the respondents cannot force the petitioners to execute a Gift Deed in favour of the local authority. The only option available with the respondents is to acquire the land earmarked for road widening purpose in terms of provisions of Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (Central Act 30 of 2013).
49. Therefore, the respondent Corporation or the appropriate planning authority has to either enter into an agreement with the owner of the land and if there is no agreement, the land has to be compulsorily acquired under Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (Central Act 30 of ______________ https://www.mhc.tn.gov.in/judis Page No 25 of 29 W.P.Nos.17363 & 18659 of 2022 2013).
50. Therefore, the respondents are directed to grant appropriate planning permission to the respective petitioners to put up construction over their properties by ensuring that the land earmarked for road widening purpose, are excluded while granting building permissions to the respective petitioners. Any such construction over such land will be at the petitioners’ own risk.
51. It is open for the respective petitioners to apply for Transfer Development Rights Certificate (TDRC), if so advised. These Writ Petitions stand allowed with the above observations. No cost. Consequently connected Miscellaneous Petitions are closed.
19.10.2022 Internet : Yes/No Index : Yes / No Jen To
1.The Commissioner, Greater Chennai Corporation, ______________ https://www.mhc.tn.gov.in/judis Page No 26 of 29 W.P.Nos.17363 & 18659 of 2022 Rippon Building, Chennai – 600 003.
2.The Executive Engineer, Zonal Office – X, Greater Chennai Corporation, No.64, N.S.K.Salai, Kodambakkam, Chennai – 600 024.
3.Assistant Executive Engineer, Zonal Office – X, Greater Chennai Corporation, No.64, N.S.K.Salai, Kodambakkam, Chennai – 600 024.
4.The Member Secretary, Chennai Metropolitan Development Authority, No.1, Gandhi Irwin Road, Egmore, Chennai – 600 008.
5.The Assistant Executive Engineer, [T.P.] Corporation of Chennai, No.266, T.H.Road, Chennai – 600 021.
______________ https://www.mhc.tn.gov.in/judis Page No 27 of 29 W.P.Nos.17363 & 18659 of 2022 C.SARAVANAN, J.
Jen Pre-Delivery Common Order in W.P.Nos.17363 & 18659 of 2022 and W.M.P.Nos.16682, 16683, 17999, 18000 & 18003 of 2022 ______________ https://www.mhc.tn.gov.in/judis Page No 28 of 29 W.P.Nos.17363 & 18659 of 2022 19.10.2022 ______________ https://www.mhc.tn.gov.in/judis Page No 29 of 29