Madras High Court
S.Premalatha vs The Director on 15 September, 2022
Author: C.Saravanan
Bench: C.Saravanan
W.P.No.277 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved On 26.08.2022
Pronounced On 15.09.2022
CORAM
THE HON'BLE MR.JUSTICE C.SARAVANAN
W.P.No.277 of 2022
and
W.M.P.Nos.306 & 307 of 2022
1.S.Premalatha
2.L.Sasidevi
3.P.Mohanraj ... Petitioners
Vs.
1.The Director,
Town & Country Planning,
807, Annasalai, Chennai.
2.The Regional Assistant Director,
Town & Country Planning,
Tiruppur Region, Tiruppur.
3.The Commissioner,
Udumalpet Municipality,
Udumalpet, Tiruppur District. ... Respondents
Writ Petition filed under Article 226 of the Constitution of India,
for issuance of a Writ of Declaration, to declare that the property of the
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https://www.mhc.tn.gov.in/judis
Page No 1 of 17
W.P.No.277 of 2022
petitioners in Survey Field No.157, Town Survey No.64/2, Old T.S.No.5,
Ward F, Block No.4, measuring an extent of 8880 sq.ft. (825 sq.mtrs.),
20.55 cents, situate at Kanakampalayam Village, Udumalpet Taluk,
Tiruppur District, reserved as park in the Detailed Development Plan
No.2 of Udumalpet Town Development Scheme is deemed to have been
released from such reservation, allotment or designation and thereby
direct the first to third respondents to regularize the Plot in the above said
property.
For Petitioners : Mr.N.Suresh
For R1 & R2 : Mrs.C.Meera Arumugam
Additional Government Pleader
For R3 : Mr.B.Anand
ORDER
Heard the learned counsel for the petitioners and the learned Additional Government Pleader for the first and second respondents and the learned counsel for the third respondent.
2. The petitioners have filed this Writ Petition for a Writ of Mandamus, to declare that the property in Survey Field No.157, Town Survey No.64/2, Old T.S.No.5, Ward F, Block No.4, measuring an extent ______________ https://www.mhc.tn.gov.in/judis Page No 2 of 17 W.P.No.277 of 2022 of 8880 sq.ft. [825 sq.mts. / 20.55 Cents] situated at Kanakampalayam Vilage, Udumalpet Taluk, Tiruppur District, reserved as Park in the Detailed Development Plan No.2 of Udumalpet Town Development Scheme is deemed to have been released from such reservation, allotment or designation under Section 38 of the Tamil Nadu Town and Country Planning Act, 1971 and to direct the first to third respondent to regularize the plot in the above said property.
3. The petitioners appear to have purchased the property from their vendor S.Jayaraman vide Sale Deed dated 16.03.2012. Pursuant to the aforesaid Sale Deed, the Special Tahsildar had also issued a Joint Patta in the name of the petitioners on 12.04.2012.
4. The petitioners' vendors S.Jayaraman had earlier filed a Suit in O.S.No.90 of 2003 before Subordinate Court, Udumalpet, to partition the lan in S.F.No.157, measuring an extent of 6.43 Acres. A Preliminary Decree was passed on 23.01.2004. Thereafter, a Final Decree was passed on 29.04.2005 in I.A.No.120 of 2004 in O.S.No.90 of 2004 based on the report of the Commissioner appointed to give a report and the Surveyor ______________ https://www.mhc.tn.gov.in/judis Page No 3 of 17 W.P.No.277 of 2022 Plans given by the Commissioner. Properties shown as Plots B, D, F, G, J & K in the Surveyor Plan were alloted to the petitioners' vendor.
5. As per the Final Decree dated 29.04.2005 in I.A.No.120 of 2004 in O.S.No.90 of 2004, the extent of the properties alloted to the petitioners' vendor, would have been 3.21.5 Acres, i.e. equal share out of 6.43 Acres (6.43/2). The allotment of land in proceedings before the Subordinate Court, Udumalpet was collectively registered as Document No.1031/2006, dated 07.03.2006 with the Sub-Registrar Officer, Udumalpet by the petitioner's vendor.
6. The case of the petitioners is that they had purchased a land measuring an extent of 8880 sq.ft. [825 sq.mts. / 20.55 Cents] in Plot J, alloted to the petitioners' aforesaid vendor. The petitioners have filed an application for regularization of the unapproved plot on 21.12.2017 which was acknowledged as Registration No.DTCP/0038102/2017 by enclosing all documents under G.O.(Ms) No.78, Housing and Urban Development [UD4(3)] Department, dated 04.05.2017. Meantime, “Town Planning Scheme No.2 of Udumalpet Local Planning Area” which was ______________ https://www.mhc.tn.gov.in/judis Page No 4 of 17 W.P.No.277 of 2022 sanctioned by G.O.No.7, dated 04.01.1972 was varied by the “Detailed Town Development Plan” and was numbered as Map No.5, DDP(V)/DTCP No.1/2014. The said variation was published in Tamil Nadu Government Gazette Notification No.6, dated 12.02.2014.
7. It is the case of the petitioner that the property purchased by the petitioners was wrongly declared as an open space in the Detailed Development Plan No.2 dated 20.01.2014 bearing reference No.Roc.No.30205/2004/DP2 published in the Tamil Nadu Government Gazette Notification No.6, dated 12.02.2014. It is submitted that earlier the petitioners sent an objection letter to the third respondent Commissioner on 24.03.2014 in respect of the above declaration of land purchased by them by reserving it as an open space. The said objection letter dated 24.03.2014 was returned by the third respondent Commissioner with request to enclose all relevant documents vide letter dated 19.05.2014 and thus rejected the request.
8. It is submitted that thereafter, the petitioners sent a representation dated 28.05.2014 to the first respondent Director of Town ______________ https://www.mhc.tn.gov.in/judis Page No 5 of 17 W.P.No.277 of 2022 and Country Planning which was forwarded to the third respondent Commissioner on 09.06.2014 to consider the representation of the petitioners.
9. The petitioners thereafter filed an application for regularization of unapproved plots on 21.12.2017. The petitioners once again sent a representation dated 05.08.2019 to the first respondent for re- classification of land as a housing site. Pursuant to the same, the first respondent sent a Notice to the third respondent Commissioner, for consideration of the case of the petitioners. Thereafter, the third respondent Commissioner, vide proceedings dated 09.09.2019, decided to refer the matter to the Government through proper channel. Thereafter, the petitioners have moved this Court with the above prayer.
10. The learned counsel for the petitioners submits that the third respondent Commissioner has also sent a suitable proposal to the Government on 09.09.2019. It is submitted that despite the same, the respondents have not re-classified the land from open place to the residential area. The learned counsel for the petitioner has placed ______________ https://www.mhc.tn.gov.in/judis Page No 6 of 17 W.P.No.277 of 2022 reliance on the decision of this Court in S.Kanagam Achi and others Vs. The Director, Town & Country Planning, 807, Anna Salai, Chennai and others, dated 26.06.2014 in W.P.No.4671 of 2010 and the decision of the Division Bench of this Court in Sri Devi Nagar Residences Welfare Association Vs. Subbathal and others, dated 12.04.2007 in W.A.Nos.156 of 2000 and 45 of 2003.
11. This Writ Petition is opposed by the third respondent. It is submitted that the petitioner's vendor had obtained a layout approval from the second respondent way back in 1978 vide Layout Approval No.50/78 which was subsequently modified vide Layout Approval No.210/1986 dated 07.06.1986 by the Udumalpet Municipality, wherein the land purchased by the petitioner has been shown as an open area.
12. It is further submitted that once the land has been shown as an open area by the petitioner's vendor while getting Layout Approval in 1978 and thereafter in the modified Layout Approval in 1986, it cannot be re-classified. It is further submitted that neither the first respondent nor the third respondent in their proceedings dated 04.09.2019 bearing ______________ https://www.mhc.tn.gov.in/judis Page No 7 of 17 W.P.No.277 of 2022 reference Na.ka.No.30205/2004/DP/TCP4 and proceeding dated 09.09.2019 bearing reference Na.Ka.No.1699/2019/F1, have concluded that the approval has to be granted for reclassifying the land as a residential area. He therefore submits that there are no merits in the present Writ Petition.
13.The learned counsel for the third respondent further submits that the property in question was classified as an open space in the year 1986 itself by the Town and Country Planning Department. This classification was approved in Town Planning Scheme No.2, Map No.3 & 4 in TP/DTP No.70/70 and G.O.No.7/R.D.L.A Department dated 04.01.1972 came to be issued. Once a property is classified as an open space, it must be used only for that purpose. It cannot be used for residential and other purpose. He therefore submits from the year 1986, the classification of the property was as an open space in approved Layout. The petitioners' vendor, suppressing the same, had sold the property to the petitioners. The remedy available to the petitioners is only against their vendor.
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14. I have considered the arguments advanced by the learned counsel for the petitioner and the learned Additional Government Pleader for the first and second respondents and learned counsel for the third respondent. I have perused the copy of the Layout Approval dated 07.06.1986 issued by the Udumalpet Municipality reversing the earlier approval granted vide Layout Approval No.50/78.
15. The petitioners' vendor S.Jayaraman had filed a partition suit in O.S.No.90 of 2003 against his brother Shanmugasundaram. A preliminary decree was passed on 23.01.2004. Thereafter, I.A.No.120 of 2004 was filed by the petitioners' vendor. An Advocate Commissioner was appointed to inspect the property. It appears that the Commissioner took a help of the Town Surveyor namely, Mr.Vaithiyanathan and divided the land between the petitioners' vendor Jayaraman and his brother Shanmugasundram.
16. The land in S.F.No.157 in the Town Survey No.64/2 Part has been divided between the petitioners' vendor Jayaraman and his brother Shanmugasundaram. The plan which was submitted by the Commissioner ______________ https://www.mhc.tn.gov.in/judis Page No 9 of 17 W.P.No.277 of 2022 before the Court was also registered as Document No.1031/2006 before the Sub Registrar, on 20.01.2006. The total extent of the land in S.F.No.157 is stated to be 6.43 Acres and was divided into two parts as “Plots A to L”. The extent of each of the Plots attached by the Commissioner in his report and annexed to the final decree reads as under:-
PLAN SHOWING THE S.F.NO: 157 (PART), T.S.NO:4P/BLOCK NO.4, WARD F, KANAKAMPALAYAM VILLAGE, UDUMALPET TOWN A 19,723.06 45.28 B 19,734.95 45.30 90.58 C 20,458.00 46.97 D 20,506.05 47.08 94.05 E 29,158.57 66.94 F 29,172.00 66.97 133.91 G 23,126.00 53.09 H 23,126.00 53.09 106.18 I 8,758.34 20.10 J 8,803.44 20.20 40.30 K 7,598.93 17.36 L 7,550.62 17.33 34.69 499.71 ROAD 38,971.82 89.47 89.47 TOTAL 589.18 ______________ https://www.mhc.tn.gov.in/judis Page No 10 of 17 W.P.No.277 of 2022
17. The total extent of land in Plots I & J is 40.30 cents. The report of the Advocate Commissioner merely incorporates the extent of land in the sketch which has been given in Page No.58 of the typed set of papers. The land is shown as part of the approved layout in L.P.No.210/1986 in Page No.58 of the typed set of papers. However, there are communications that prior to layout approval was granted under Section 47 of the Tamil Nadu Town and Country Planning Act, 1971. The petitioners cannot ask for re-classification of the land as the residential purpose in contravention of the provisions of the Tamil Nadu Town and Country Planning Act, 1971. The layout approval was in confirming of Section 47 of the Tamil Nadu Town and Country Planning Act, 1971. Section 47 of the Act reads as under:-
47. Use and development of land to be in conformity with development plan.-
After the coming into operation of any development plan in any area, no person other than any State Government or the Central Government, or any local authority shall use or cause to be used, any land or carry out any development in that area otherwise than in conformity with such development plan:
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18. The third respondent had earlier rejected the request of the petitioners vide communication dated 19.05.2014 bearing reference Na.Ka.No.B12/2014/F1. Thereafter, the petitioners sent several communications, pursuant to which, the resolution came to be passed by the third respondent, wherein, it was decided to refer the matter through proper channel. The decision taken was also conveyed vide communication dated 04.09.2019.
19. In this case, the Town Planning Scheme was granted by the Director of Town and Country Planning Act as early as 1972 vide G.O.No.7, dated 04.01.1972 which was entirely modified in 2014 vide Detailed Development Plan No.2 dated 20.01.2014 bearing reference No.Roc.No.30205/2004/DP2. The new plan was numbered as Map No.5 ______________ https://www.mhc.tn.gov.in/judis Page No 12 of 17 W.P.No.277 of 2022 DDP (V)/DTCP No.1/2014.
20. The land in question has been shown as an open space in the approved layout. Only a copy of the approved layout has been filed by the respondents. It is not clear as to whether the layout approval was obtained by the petitioners' vendor or by a third person.
21. The fact however remains that the land was classified as an open space in the layout approval. This approval precedes the Town Planning Scheme No.2 of Udumalpet Local Planning Area which was varied by G.O.No.7, dated 04.01.1972 and published in Tamil Nadu Gazette Notification dated 08.03.1972. The approval sanctioned would be in terms of Section 29 of the Tamil Nadu Town and Country Planning Act, 1971. The copy of the aforesaid Government Order has not been filed either by the petitioner or by the respondents.
22. The Town Planning Scheme No.2 of Udumalpet Local Planning Area was later varied by a Detailed Town Development Plan No.2 of Udumalpet in the year 2014 and numbered as Map.No.5 ______________ https://www.mhc.tn.gov.in/judis Page No 13 of 17 W.P.No.277 of 2022 DDP(V)/DTCP.No.1/2014 dated 12.02.2014 and published in the Tamil Nadu Government Gazette on 12.02.2014.
23. The partition suit filed by the petitioners' vendor against the his brother appears to be collusive proceedings between them. It is strange that a preliminary decree in O.S.No.90 of 2003 was passed on 23.01.2004 within a year from the date of its institution a the final decree in I.A.No.120 of 2004 has been passed on 29.04.2005 but for the complicity.
24. Either the petitioners are colluding with their vendors or closed their eyes while buying the land without verifying the land records which classified the land as an open space vide Sanctioned Town Planning Scheme No.2 of Udumalpet Local Planning Area which was varied by G.O.No.7, dated 04.01.1972 and published in the Tamil Government Gazette on 08.03.1972 which was subsequently modified on 12.02.2014. Therefore, without establishing the proper rights over the land, the petitioners cannot ask for re-classification of the land in terms of G.O.(Ms) No.78, Housing and Urban Development [UD4(3)] ______________ https://www.mhc.tn.gov.in/judis Page No 14 of 17 W.P.No.277 of 2022 Department, dated 04.05.2017. Further, as per the decision of the Hon'ble Supreme Court in G.N.Khajuria Vs. Delhi Development, AIR 1996 SC 253, re-classification of the land meant for an open space is impermissible. The Hon'ble First Bench of this Court in R.Chandran Vs. State of Tamil Nadu, 2010 (4) CTC 737, held that any attempt to change the use of the land meant for an open space would not be permissible.
25. The benefit of G.O.(Ms) No.78, Housing and Urban Development [UD4(3)] Department, dated 04.05.2017 is only available for sale of land and/or construction of a building in an unapproved layout. The land in question already form a part of the approved layout in respect of which a Sanctioned Town Planning Scheme exists as mentioned above. Therefore, there is no merits in the present Writ Petition. I however give liberty to the petitioners to perfect the rights over the land to file a revision under Section 80-A of the Tamil Nadu Town and Country Planning Act, 1971.
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26. This Writ Petition stands dismissed with the above observations. No cost. Consequently, connected Miscellaneous Petitions are closed.
15.09.2022 Internet : Yes/No Index : Yes / No Jen To
1.The Director, Town & Country Planning, 807, Annasalai, Chennai.
2.The Regional Assistant Director, Town & Country Planning, Tiruppur Region, Tiruppur.
3.The Commissioner, Udumalpet Municipality, Udumalpet, Tiruppur District.
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Jen Pre-Delivery Order in W.P.No.277 of 2022 and W.M.P.Nos.306 & 307 of 2022 15.09.2022 ______________ https://www.mhc.tn.gov.in/judis Page No 17 of 17