Madras High Court
A.Bhaskaran vs The Director Of Town And Country ... on 21 February, 2019
Author: Abdul Quddhose
Bench: Abdul Quddhose
1
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 21.02.2019
CORAM:
THE HONOURABLE MR.JUSTICE ABDUL QUDDHOSE
W.P.(MD)No.13645 of 2017
A.Bhaskaran ... Petitioner
Vs
1.The Director of Town and Country Planning,
No.807, Anna Salai,
Chennai-02.
2.The District Collector,
Madurai District, Madurai.
3.The Member Secretary,
Madurai Local Planning Authority,
Corporation Office Building,
Anna Maligai 3rd Floor,
Madurai-02.
4.The Commissioner,
Madurai Corporation,
Madurai. ... Respondents
PRAYER: Petition filed under Article 226 of the Constitution of
India to issue a Writ of Declaration, to declare, the reservation,
made in respect of the petitioner land in R.S.Nos.117/1B, 122/1A
and 122/2A situated at Ward No.29, Vandiyur I Bit Village,
Vandiyur, Madurai under the Vandiyur Detaill Development Plan
No.4, to have lapsed by operation of Section 38 of Tamil Nadu
Town and Country Planning Act, 1971 (TN Act 35 of 1974) in light
of the judgment of this Court in Commissioner Aruppukottai
Municipality Vs. Kamakshi Shelty reported in 2011 (8) MLJ 437.
http://www.judis.nic.in
2
For Petitioner : Mr.N.S.Karthikeyan
for Mr.V.Muthukamatchi
For R-1 and R-2 : Mr.M.Jeyakumar
Additional Government Pleader
For R-3 : No Appearance
For R-4 : Mr.J.Gunaseelanmuthiah
ORDER
The Instant Writ Petition has been filed seeking for a declaration to declare the reservation, made in respect of the petitioner's land in R.S.Nos.117/1B, 122/1A and 122/2A situated at Ward No.29, Vandiyur I Bit Village, Vandiyur, Madurai under the Vandiyur Detail Development Plan No.4, to have lapsed by operation of Section 38 of Tamil Nadu Town and Country Planning Act, 1971.
2.It is the case of the petitioner that he is the absolute owner of the land in R.S.Nos.117/1B measuring an extent of 75 cents, 122/1A measuring an extent of 89 cents and 122/2A measuring an extent of 88 cents, situated at Ward No.29, Vandiyur I Bit Village, Vandiyur, Madurai, totally measuring an extent of 2 acre 62 cents. It is the case of the petitioner that he applied for planning http://www.judis.nic.in 3 permission with the fourth respondent for construction of a house in a portion of the aforesaid lands, which was rejected on the ground that the lands come under playground area of Vandiyur Detailed Development Plan No.4 and therefore, no planning permission can be granted to the petitioner. The said application for planning permission of the petitioner was rejected by the fourth respondent on 17.06.2017. Thereafter, on verification by the petitioner, he came to know that by a notification dated 05.09.2012 issued by the respondents, there was a proposal to develop large extent of lands at Vandiyur, Madurai, which included the lands of the petitioner and a Detailed Vandiyur Development Plan was formulated by the respondents. The said notification for Vandiyur Detailed Development Plan was issued on 05.09.2012.
3.According to the petitioner, after the issuance of the notification dated 05.09.2012, no steps were taken by the fourth respondent to acquire the lands belonging to the petitioner as well as the adjacent land owners in Vandiyur, Madurai. Since no steps have been taken for acquisition, according to the petitioner, under Section 38 of the Tamil Nadu Town and Country Planning Act, 1971, the proposal for Vandiyur Detailed Development Plan made http://www.judis.nic.in 4 by the respondents is now lapsed. Therefore, the petitioner has filed the present Writ Petition seeking release of his lands.
4.The third respondent has filed a counter affidavit for himself and on behalf of the first and second respondents also, wherein, they have admitted that a notification was issued for Vandiyur Detailed Development Plan at Vandiyur I Bit Village, Vandiyur, Madurai. They have stated that the owners of lands were called to submit their objections as regards the proposed acquisition of their lands. They have also stated that the acquisition would be done by the local authority, after preparation of the Detailed Development Plan. They have also stated that the Executive Authority would acquire the land and reserve the same as a notified area under Sections 3 and 4 of Park, Play Field Reservation and Regulation Act, 1959 and steps have been taken by the Executive Authority for the said purpose.
5.The fourth respondent has also filed a counter, wherein, he has given details of the lands that have been proposed to be acquired for the purpose of Vandiyur Detailed Development Plan. He has stated that the petitioner's land has been specifically http://www.judis.nic.in 5 earmarked for the public purpose of play ground for the utilisation in the Vandiyur Detailed Development Plan No.4 and the same has been Gazetted on 05.09.2012. According to the fourth respondent, the petitioner has not challenged the Gazetted Notification and therefore the notification binding on the petitioner. Discussion:
6.Section 38 of the Tamil Nadu Town and Country Planning Act, 1971 reads as follows:-
”Section 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 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.” http://www.judis.nic.in 6
7.As seen from Section 38, it is clear that if within three years from the date of the publication of the notice in the Tamil Nadu Government Gazette under Sections 26 or 27 of the Act, no declaration as provided in sub-section (2) of Section 37 is published in respect of any land specified for Detailed Development Plan or such land is not acquired by agreement, the land shall be deemed to be released from such reservation, allotment or designation.
8.In the instant case on hand, notices under Sections 26 and 27 were issued on 20.04.2005 and 23.09.2007 respectively. Thereafter, a declaration was published in the Tamil Nadu Government Gazette under Rule 17 of the Preparation and Sanction of Detailed Development Plan Rules r/w Section 29 of the Tamil Nadu Town and Country Planning Act. Even though, notice under Sections 26 and 27 of the Act was issued as early as in the year 2009 and the declaration under Rule 17 r/w Section 29 was issued on 05.09.2012, till date there is no further progress for development has taken place.
9.After hearing the submissions made by the learned Additional Government Pleader, it is seen that no steps have been http://www.judis.nic.in 7 taken for acquisition of the lands from the petitioner. Section 38 of the Act makes it clear that if no steps have been taken for acquisition of the lands within three years from the date of the publication of the notification in the Tamil Nadu Government Gazatte under Sections 26 or 27 of the Act, the land shall be deemed to be released from such reservation, allotment or designation.
10.The learned counsel for the petitioner drew the attention of this Court to the following authorities in support of the Writ Petition:-
1.The Commissioner Aruppukottai Municipality Vs. Kamakshi Shelty reported in 2011 (8) MLJ 437 in the Hon'ble Division Bench of this Court.
2. A.Raja Vs. The Director of Town and Country Planning and others in W.P.(MD).No. 15350 of 2016 dated 30.11.2016 in the Madras High Court.
3.V.Nagamani and another Vs. Director of Town and Country Planning, Chennai and others reported in (2010) 2 MLJ 688 in the http://www.judis.nic.in 8 Madurai Bench of Madras High Court.
11.In all the aforesaid Judgments, the Hon'ble Division Bench of this Court as well as the learned Single Judges of this Court have held following Section 38 of the Tamil Nadu Town and Country Planning Act that once no steps have been taken by the respondents within three years from the date of notification under Sections 26 or 27 of the Act, the land shall be deemed to released from such reservation, allotment or designation. In the case on hand, admittedly no steps have been taken to acquire the lands belonging to the petitioner, within a period of three years from the date of notification under Sections 26 or 27 of the Act. It is also submitted that pursuant to the proposal for a Detailed Vandiyur Plan by the respondents, the adjourning lands have also not been acquired.
12.In the light of the above observations, Section 38 of the Tamil Nadu Town and Country Planning Act is attracted and this Court is in agreement with the view taken by the Division Bench of this Court as well as the learned Single Judges of this Court referred to supra and comes to the conclusion that the subject http://www.judis.nic.in 9 lands should be released to the petitioner.
13.In the result, the respondents are directed to release the land in R.S.Nos.117/1B, 122/1A and 122/2A situated at Ward No.29, Vandiyur I Bit Village, Vandiyur, Madurai under the Vandiyur Detailed Development Plan No.4, to the petitioner as the proposal to acquire the said lands have been lapsed by virtue of Section 38 of the Tamil Nadu Town and Country Planning Act, 1971.
14.With the aforesaid direction, the Writ Petition is disposed of. No costs.
21.02.2019
Index : Yes/No
Internet : Yes/No
sji
http://www.judis.nic.in
10
ABDUL QUDDHOSE, J.,
sji
To
1.The Director of Town and Country Planning, No.807, Anna Salai, Chennai-02.
2.The District Collector, Madurai District, Madurai.
3.The Member Secretary, Madurai Local Planning Authority, Corporation Office Building, Anna Maligai 3rd Floor, Madurai-02.
4.The Commissioner, Madurai Corporation, Madurai.
W.P.(MD)No.13645 of 2017
21.02.2019 http://www.judis.nic.in