Madras High Court
S.Kamaraj vs The Director on 8 November, 2019
Author: M.Govindaraj
Bench: M.Govindaraj
W.P.(MD)Nos.19530 and 19532 of 2019
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 08.11.2019
CORAM
THE HONOURABLE MR.JUSTICE M.GOVINDARAJ
W.P.(MD)Nos.19530 and 19532 of 2019
1.S.Kamaraj
2.D.Shanthi :Petitioners in both W.Ps.
Vs.
1.The Director,
Directorate of Town and Country Planning Office,
Opposite to LIC,
Chengalvarayan Building,
4th Floor, No.807, Anna Salai,
Chennai-600 002.
2.The Deputy Director of Town and Country Planning,
Madurai Region,
No.4, Hakkim Ajmal Khan Road,
Chinna Chockikulam Road,
Madurai-625 002.
3.The Commissioner,
Sivakasi Municipality,
Sivakasi. : Respondents in both W.Ps.
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W.P.(MD)Nos.19530 and 19532 of 2019
PRAYER in W.P.(MD)No.19530 of 2019: Writ Petition filed under Article 226 of
the Constitution of India, seeking for a Writ of Certiorari, calling for the
records relating to the order of the second respondent dated 11.05.2018 in
Na.Ka.No.4061/2017/MM4, and quash the condition imposed thereon to
maintain the scheme road.
PRAYER in W.P.(MD)No.19532 of 2019: Writ Petition filed under Article 226 of
the Constitution of India, seeking for a Writ of Declaration, declaring that the
South of Railway Line Detailed Development Plan of the Sivakasi Local
Planning Area approved by the first respondent in his proceedings Roc.No.
8416/87/DP2 dated 31.03.1987 has lapsed in so far as petitioners lands
situated in Town Survey Numbers 45/1 and 45/2 admeasuring 3900 square
metre is concerned.
For Petitioner (in both W.Ps.) :Mr.N.Dilip kamal
For Respondents 1 and 2 : Mr.J.Padmavathi Devi
(in both W.Ps.) Spl Govt. Pleader
For 3rd Respondent : Mr.J.Senthil Kumaraiah
(in both W.Ps.)
COMMONORDER
*********** W.P.(MD)No.19530 of 2019 has been filed for issuance of Writ of Certiorari, to quash the order of the second respondent dated 11.05.2018 in Na.Ka.No.4061/2017/MM4 and to maintain the scheme road.
2.W.P.(MD)No.19532 of 2019 has been filed for issuance of Writ of 2/12 http://www.judis.nic.in W.P.(MD)Nos.19530 and 19532 of 2019 Declaration, to declare that the South of Railway Line Detailed Development Plan of the Sivakasi Local Planning Area approved by the first respondent in his proceedings Roc.No.8416/87/DP2 dated 31.03.1987 has lapsed in so far as petitioners lands situated in Town Survey Numbers 45/1 and 45/2 admeasuring 3900 m2 is concerned.
3.The case of the petitioners is that the first petitioner's father executed settlement deeds in favour of the petitioners on 28.01.2015 vide Document Nos.607/2015 and 608/2015 in respect of extents of 1650.66 square metre and 2034.75 square metre of land respectively and since then, they have been in possession and enjoyment of the same.
4.The petitioners would state that the Government introduced “Tamil Nadu Regularisation of Unapproved Layout and Plots Rules, 2017” in G.O.Ms.No.78, Housing and Urban Development Department dated 04.05.2017 in exercise of the powers vested under Section 113 of the Tamil Nadu Town and Country Planning Act, 1971'. The said rules provide for regularization of individual plots sold and registered on or before 20.10.2016. The petitioners are eligible to apply under the said scheme. Pursuant to the petitioners' application dated 20.11.2017, the 2nd respondent issued orders of 3/12 http://www.judis.nic.in W.P.(MD)Nos.19530 and 19532 of 2019 regularisation on 11.05.2018 in Na.Ka.No.4061/2017 MM4. The plot numbers 4, 5 and 6 of the petitioner's land have been reserved for a scheme road viz., “South of Railway Line Detailed Development Plan of the Sivakasi Local Planning Area” which was approved by the Director of Town and Country Planning in his proceedings RoC.No.8416/87/DP2 dated 31.03.1987.
5.The petitioners seek to quash the proceedings of the second respondent and to declare the approval of the first respondent as lapsed on the ground that the respondents have not initiated proceedings and acquired the land of the petitioners under section 37 of the Act, within a period of three years and therefore, the entire proceedings are deemed to be lapsed.
6.The learned Special Government Pleader appearing for the respondents would submit that the land was originally acquired by the respondents in the year 1987. However, till date, the petitioners have not made any representation to the planning authority or the appellate authority regarding the de-reservation of portion of the public purpose. She further submitted that now steps are taken to acquire the land by the Executive Authority and the land once earmarked for public purpose, nobody will have any right over the same. Hence, the writ petition is liable to be dismissed. 4/12 http://www.judis.nic.in W.P.(MD)Nos.19530 and 19532 of 2019
7.The learned counsel appearing for the petitioners, by placing reliance on the decision of this court reported in 2008(2) MLJ 184 (K.S.Kamakshi Chetty and others vs. Commissioner, Aruppukottai Municipality, Aruppukottai and another) and CDJ 2017 (MHC) 2551 (P.Babu vs. The Director, Town & Country Planning, Chennai and another) would contend that when no steps have been taken for acquiring the lands within a period of three years and when the land was earmarked for the public purpose as per notification, the property would be deemed to have been released from the reservation under Section 38 of the Act.
8.Heard both sides and perused the materials available on record.
9.Sections 37 and 38 of the Tamil Nadu Town and Country Planning Act, 1971 read as follows:-
“37.Power to purchase or acquire lands specified in the 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 5/12 http://www.judis.nic.in W.P.(MD)Nos.19530 and 19532 of 2019 plan or a new town development plan, as the case may be, any land is required, reserved or designated in such plan, the appropriate planning authority may, either enter into agreement with any person for the acquisition from him by purchase of any land which may be acquired under section 36 or make an application to the Government for acquiring such land under the Land Acquisition Act, 1894 (Central Act I of 1984):
Provided that if the value of such land exceeds fifty thousand rupees the appropriate planning authority shall not enter into such agreement without the previous approval of the Government.
(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 make a declaration to that effect in the Tamil Nadu Government Gazette, in the manner provided in section 6 of the Land Acquisition Act, 1894 (Central Act I of 1894), in respect of the said land. The declaration so published shall, notwithstanding anything contained in the said Act, be deemed to be a declaration duly made under the said section 6 of 6/12 http://www.judis.nic.in W.P.(MD)Nos.19530 and 19532 of 2019 the said Act:
Provided that no such declaration in respect of any particular land covered by a notice under section 26 or section 27 shall be made after the expiry of three years from the date of such notice.
(3)On the publication of such declaration, the Collector of the district within whose jurisdiction the land is situate, shall proceed to take order for the acquisition of such land under the said Act; and the provisions of that Act shall, so far as may be, apply to the acquisition of the said land with the modification that the market value of the land shall be the market value prevailing on the date of publication of the notice in the Tamil Nadu Government Gazette under section 26 or section 27, as the case may be.”
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 7/12 http://www.judis.nic.in W.P.(MD)Nos.19530 and 19532 of 2019 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.”
10.A plain reading of sections 37 and 38 of the Tamil Nadu Town and Country Planning Act, 1971 (herein-after called as Act) would reveal that after publication of the notice in the Tamil Nadu Government Gazette of preparation of a regional plan, master plan, detailed development plan or a new town development plan, any land is required, reserved or designated in such plan, acquisition of the land shall be made either under section 36 of the Act or following the procedures under Land Acquisition Act. If the acquisition proceedings are not completed within three years from the date of such notice, the entire proceedings would lapse.
11.In 2008(2) MLJ 184 [K.S.Kamakshi Chetty and others vs. Commissioner, Aruppukottai Municipality, Aruppukottai and another], this court has held that as follows:-
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http://www.judis.nic.in W.P.(MD)Nos.19530 and 19532 of 2019 “9.On the facts and circumstances of the present case, the petitioners have clearly stated in the affidavit that even under the old Act VII of 1920, no steps were taken for the purpose of completing the acquisition within three years and the same has not been denied in the counter affidavit filed by the first respondent. Even assuming that the said Scheme has been taken over under the Act 35 of 1972, even from the date of coming into effect of the Act within the period stipulated under Section 38, no steps have been taken by the respondents for acquiring the property for the purpose of “open space” stated to have been reserved under the North-East Extension Town Planning Scheme Part II, Aruppukottai, sanctioned under G.O.Ms.No.474 LA, dated 2.3.1969.
10.This has been the consistent view taken by this Court in various cases also. In W.P.No.5630 of 2000 (SV.P.N.S.S.Sivaramalingam v. Commissioner, Virudhunagar Municipality and Another) K.P.SIVASUBRAMANIAM,J, by order, dated 20.2.2001, while dealing with detailed development plan under Act 35 of 1972 has held that after publishing the said plan on 23.5.1984, the property ear-
marked for the purpose has not been utilized in terms of Notification and no steps have been taken 9/12 http://www.judis.nic.in W.P.(MD)Nos.19530 and 19532 of 2019 by the authority to acquire the property and therefore, as per Section 38 of the Tamil Nadu Town and Country Planning Act 1971, the property is deemed to be released from such reservation, allotment or designation. The same view was subsequently, followed by P.D.DINAKARAN,J in W.P.No.12105 of 2003 (R.Jeyapal V. Sattur Municipality rep. by its Commissioner, Sattur and Another) in the order, dated 3.3.2004.” The same view was taken by this court in the subsequent judgment reported in CDJ 2017 MHC 2551.
12.In the case on hand, it is specifically stated by the petitioners that the “South of Railway Line Detailed Development Plan of the Sivakasi Local Planning Area” was published in the year 2009. However, the acquisition proceedings are not completed within the stipulated time of three years. Hence, the reservation made under the detailed development plan lapses by operation of Section 38(2) of the Act.
13.In view of the categorical admission made by the respondents that the land in question has not been acquired so far, as per section 38 of the Act, 10/12 http://www.judis.nic.in W.P.(MD)Nos.19530 and 19532 of 2019 keeping in mind the provisions of the Act and the consistent view taken by this court in the decisions referred supra, I am of the considered opinion that the petitioner is entitled to succeed in this writ petition.
14.In the result, the writ petitions are allowed. The proceedings passed by the second respondent in Na.Ka.No.4061/2017/MM4 dated 11.05.2018 is quashed. The respondents are directed to release the petitioner's land, town Survey Numbers 45/1 and 45/2 admeasuring 3900 square metre within a period of two weeks from the date of receipt of the order copy and communicate the same to the petitioners. No costs.
08.11.2019
Index : Yes / No
Internet : Yes / No
mrn
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W.P.(MD)Nos.19530 and 19532 of 2019
M.GOVINDARAJ,J.
Mrn
To
1.The Director,
Directorate of Town and Country Planning Office, Opposite to LIC, Chengalvarayan Building, 4th Floor, No.807, Anna Salai, Chennai-600 002.
2.The Deputy Director of Town and Country Planning, Madurai Region, No.4, Hakkim Ajmal Khan Road, Chinna Chockikulam Road, Madurai-625 002.
3.The Commissioner, Sivakasi Municipality, Sivakasi.
ORDER MADE IN W.P.(MD)Nos.19530 and 19532 of 2019 08.11.2019 12/12 http://www.judis.nic.in