Madras High Court
Mothees Baba @ Mothilal vs The State Of Tamil Nadu on 2 September, 2022
Author: Munishwar Nath Bhandari
Bench: Munishwar Nath Bhandari
W.P.No.22618 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 02.09.2022
CORAM :
THE HON'BLE MR.MUNISHWAR NATH BHANDARI, CHIEF JUSTICE
AND
THE HON'BLE MRS.JUSTICE N.MALA
W.P.No.22618 of 2022
Mothees Baba @ Mothilal ... Petitioner
versus
1.The State of Tamil Nadu
Rep. by its Principal Secretary to Government
Housing and Urban Development
(UD4(1) Department
Fort St. George, Chennai 600 009.
2.The Secretary to Government
Housing and Urban Development
(UD4(3) Department
Fort St. George, Chennai 600 009.
3.The Director
Directorate of Town and country Planning
2nd, 3rd and 4th Floor, C and E Market Road
Koyambedu Chennai - 600 107.
4.The Assistant Director of Town and Country Planning
District Town Planning Officer
No.56/A TADCO Complex
Government Hospital Road
Villupuram District. ... Respondents
Page 1 of 20
https://www.mhc.tn.gov.in/judis
W.P.No.22618 of 2022
Prayer: Petition filed under Article 226 of the Constitution of India for
issuance of a Writ of Declaration declaring the Rule 5(1) of the Tamil
Nadu Regularisation of Unapproved Plots and Lay-out Rules 2017 and
the G.O.No.16 Housing and Urban Development (UD4(1))Department
dated 25.1.2021 passed by the respondents as illegal and
unwarranted and unconstitutional and further direct the Respondents
to Regularise the Petitioners Layout called Sun-City at Veerapandi
Nagar and Veerapandi Village, Villupuram District as per the Tamil
Nadu Regularisation of unapproved Plots Layout Rules, 2017 on
obtaining necessary charges from the petitioners.
For the Petitioner : Ms.Karthikaa Ashok
For the Respondents : Mr.P.Muthukumar,
State Government Pleader,
assisted by
Mr.M.Alagu Gowtham,
Government Advocate
ORDER
(Order of the Court was made by the Hon'ble Chief Justice) The writ petition has been filed to challenge Rule 5(1) of the Tamil Nadu Regularisation of Unapproved Plots and Lay-out Rules 2017 (hereinafter referred to as 'the Rules of 2017') and G.O.No.16 dated 25.01.2021 issued by the Housing and Urban Development (UD4(1))Department.
2. The learned counsel for the petitioner submits that there is a conflict between Rule 3 and Rule 5(1) of the Rules of 2017 and thus Page 2 of 20 https://www.mhc.tn.gov.in/judis W.P.No.22618 of 2022 cannot coexist together and at the same time, Government Order dated 25.01.2021, fixing the extended time limit of 28.02.2021 for regularisation of plots, sold or unsold in the unapproved layouts unless at least one plot in the said layout should have been registered on or before 20.10.2016.
3. It is submitted that in the absence of the knowledge of the notification of 2017 to bring Rules and subsequent Government Orders to extend time, petitioner was unable to make an application to seek regularization of the layout and individual plot sold by him on or before the cut-off date of 20.10.2016 given under Rule 3 of the Rules of 2017.
4. Since the respondents have denied to extend the period, application made by the petitioner on 04.04.2022 has not been considered as it is beyond the extended cut-off date of 28.02.2021. The respondents may accordingly be directed to extend the date further for those who could not apply for regularization of unapproved plots and layouts, and for that purpose, Rule 5(1) of the Rules of 2017 and the G.O. Dated 25.01.2021 have to be struck down. Page 3 of 20 https://www.mhc.tn.gov.in/judis W.P.No.22618 of 2022
5. The learned counsel elaborating the arguments, submitted that Rule 3 of the Rules of 2017 provides for consideration of the application for regularization of unapproved plots and layouts which were sold through a registered deed as on 20.10.2016 or before, and individual plots in a sub-division registered by a sale or title deed as on 20.10.2016. As a proof and evidence, the plot holder or the layout promoter is required to furnish copies of the sale deed or title deed for the plots sold. The agreement for sale or General Power of Attorney shall not be considered as evidence for proof of sale of plot.
6. In contrast, Rule 5(1) permits application even in regard to the plots sold with registration of sale deeds on or after 20.10.2016 because the compulsory application for regularization would not be guided by the riders placed in Rule 3 of the Rules of 2017. Therefore, Rule 5(1) deserves to be struck down.
7. The challenge to the Government Order dated 25.01.2021 has been made on the ground that the last extension has been given till 28.02.2021, as no application after the aforesaid date would be admissible and even for the application on or before Page 4 of 20 https://www.mhc.tn.gov.in/judis W.P.No.22618 of 2022 28.02.2021, it was necessary that at least one plot/layout should have been registered on or before 20.10.2016. It is submitted that fixing of cut-off date in the Government Order dated 25.01.2021 is arbitrary and it was not given due publicity and thereby, the petitioners and others were not aware of it. Rule 15 refers to the consequences of non-regularisation and therefore, petitioner is compelled to apply for regularization. The prayer is accordingly to set aside the Government Order dated 25.01.2021 with a direction to the respondents to extend the date for making application for regularization having sold the plot on or before 20.10.2016.
8. We have considered the submissions made by the learned counsel for the petitioner and perused the records. It has come out that the notification dated 04.05.2017 was published in the Government gazette and once it is notified in the gazette, it remains in the public domain and no body can plead ignorance of the notification, as otherwise, ignorance of law is no excuse. It is apart from the fact that the Rules of 2017 were brought pursuant to a direction by the High Court in reference to the unapproved layouts and plots after sub-division. It was found to be not only in urban but Page 5 of 20 https://www.mhc.tn.gov.in/judis W.P.No.22618 of 2022 rural areas, giving mushroom growth of layout/plots in agricultural land even without conversion or reclassification. It was otherwise resulting in inadequate infrastructure and public amenities. It was thus found necessary to make one-time arrangement to regularise the plots in such unapproved layouts or sub-division of plots.
7. Rules 3 and 5 of the Rules of 2017 were brought for the aforesaid purpose apart from other purposes and in that regard, Rule 4 refers to the restrictions for regularisation of unapproved plots and layouts under certain circumstances.
Rule 3, 4 and 5 of the Rules of 2017 are quoted thus:
“3. Cut-off date for considering regularisation of unapproved plots and layouts.– Only those unapproved layouts where a part or full number of plots have been sold through a registered sale deed as on 20th October, 2016 shall be considered for regularization under these rules. Similarly, all plots including unsold ones are eligible for regularization in layouts where at least a part of the total number of plots have been sold through a registered sale deed as on 20th October, 2016. Individual plot in a sub-division registered by a sale or title deed as on 20th October, 2016 shall also be eligible for regularization. As proof and evidence, the plot holder or the layout promoter is required to furnish copies of the sale deed Page 6 of 20 https://www.mhc.tn.gov.in/judis W.P.No.22618 of 2022 or title deed for the plots sold. Agreement for sale or General Power of Attorney shall not be considered as evidence for proof of sale of plot.
4. Restrictions for regularization of unapproved plots and layouts. – (1) No plot or layout in part or whole, which is located in public water body like Channel, Canal, Tank, Lake, River, etc. shall be eligible for regularization.
(2) No plot or layout in part or whole in Government Poramboke land shall be eligible for regularisation. (3) No plot or layout in Open space reservation(OSR) land, Park or Playfield reserved in any approved layout or sub- division shall be considered for regularization. (4) Vacant plots blocking access to surrounding lands which do not have any other means of access are not eligible for regularisation.
(5) No plot or layout in part or whole, lying in the lands affected by the alignments of proposed road or rail corridors and street alignments specified in the development plans shall be regularised.
(6) No plot with any encroachment on to a public road or street or on any other land over which the applicant does not possess ownership right and lands affected by the repealed Tamil Nadu Urban Land (Ceiling and Regulation) Act, 1978 (Tamil Nadu Act 24 of 1978) shall be considered for regularisation.
(7) No plot or layout in part or whole, lying in the lands below Page 7 of 20 https://www.mhc.tn.gov.in/judis W.P.No.22618 of 2022 the alignment of high tension and extra high voltage electric line including tower lines shall be regularised.
5. Compulsory application for regularization.– (1) It shall be compulsory for all the individual plot owners and layout promoters eligible under rule 3 to file an application on-line in Form-I for regularisation to the Competent Authority concerned within six months from the date of commencement of these rules along with the fees and charges as per the self assessment made and annexed with the application. The Competent Authority shall process the application and pass orders of regularization on-line. Provided that the application for individual plot regularization in a layout shall be considered for regularization only after in principle approval of the layout framework is issued by the Competent Authority. Accordingly, all the individual plot owners in an unapproved layout shall apply for regularization of their plots along with a sketch of the layout.
(2) Application for regularization of unapproved layout can also be made by the Layout Promoter / Registered Co- operative society / Association of the plot holders in an unapproved layout where more than two-thirds of the total number of plots in the layout have been sold before the cut- off date.
(3) Within 15 days from the date of notification of these rules the Competent Authority specified in rule 2(2)(ii) shall call upon the Competent Authority specified in rule 2(2)(i) to furnish a certified list of unapproved layouts formed within its jurisdiction along with the details of name of the revenue Page 8 of 20 https://www.mhc.tn.gov.in/judis W.P.No.22618 of 2022 village, survey numbers or ward numbers, town survey numbers, name of the local body, as the case may be covered by the layout and its extent.
(4) Upon receipt of the list of unapproved layouts, the Competent Authority specified in rule 2(2)(ii) shall suo-motu prepare and approve and give in-principle approval for the layout framework as existing on ground by employing the services of licensed surveyors for those layouts which are covered in the list furnished by the Competent Authority specified in rule 2(2)(i) but not applied for regularization by any of the layout Promoter/Registered Co-operative Society/Association of plot owners.
(5) The Layout Promoter/Registered Co-operative society/ Association applying for regularization of the layout shall be jointly and severally responsible for undertaking the rectification of deficiencies in such unapproved layout and to comply with the conditions as directed by the Competent Authority concerned, and pay the required fees and charges as prescribed in these rules by the Competent Authority.
(6) Application for regularisation of unapproved individual plot in a layout or sub-division shall be made to the Competent Authority concerned as specified in rule 2(2)(i).
(7) Application for regularisation of unapproved layout shall be made to the Competent Authority concerned as specified in rule 2(2)(ii).
(8) An application made by any person for regularisation of plot or layout who does not have any right over the land shall be summarily rejected.
(9) The application shall be accompanied by the Page 9 of 20 https://www.mhc.tn.gov.in/judis W.P.No.22618 of 2022 following documents, namely:
(a) For regularisation of unapproved individual plot in a sub division or layout:
(i) Three copies of plan showing the site plan with dimensions of the plot or sub division as per the patta or Field Measurement Book (FMB) sketch, and the width of the access road duly signed by both the applicant who has the right over the land and the Licensed Surveyor or other professionals prescribed in the relevant Act or Building Rules;
(ii) A copy of layout plan showing the plot proposed for regularization, dimensions of the plots, road network, width of the roads, dimensions of public open spaces and public purpose plots along with survey field numbers of the village covered by the layout;
(iii) A copy of topo sketch showing the location of layout and connectivity of the layout to the public road and physical features surrounding the layout;
(iv) A self attested copy of sale deed or title deed for the plot.
(v) A copy of patta, Permanent Land Record (PLR) or Town Survey Land Record (TSLR) extract in favour of the applicant shall be furnished. If the patta, Permanent Land Record (PLR) or Town Survey Land Record (TSLR) in favour of the applicant has not been obtained, then, the same in favour of the previous owner of the land shall be furnished;
(vi) Encumbrance certificate issued by the Registration Department covering the plot transaction issued not more than a week before the date of application;
(vii) In case of plot falling in agriculture land, a Page 10 of 20 https://www.mhc.tn.gov.in/judis W.P.No.22618 of 2022 certificate or status report from the Tahsildar of the concerned Taluk that the layout is not obstructing the waterways on the common field irrigation channels on the ground and flood level or inundation status.
(b) For regularisation of unapproved layout:
(i) Five copies of layout plan showing the dimensions of the plots, road network, width of the roads, dimensions of public open spaces, public purpose plots and the survey field numbers of the village covered by the layout and marking the plots sold in the layout before the commencement of these rules;
(ii) A copy of the topo sketch plan showing the public access to the layout, width of the access road and the surrounding physical features within a radius of 500 metres from the layout;
(iii) Encumbrance Certificate (EC) issued by the Registration Department covering all the survey field numbers of the layout for the period from the date of commencement of sale of plot to the date not more than a week before the date of application;
(iv) A self attested tabular statement showing the details of the plots sold including plot number, dimensions and its extent, date of sale, document number, name of the purchaser tallying with the encumbrance certificate and the details of unsold plots in case where the application is made by the layout promoter;
(v) Self attested copy of ownership document in favour of the Page 11 of 20 https://www.mhc.tn.gov.in/judis W.P.No.22618 of 2022 owner of the land in which the layout has been formed in case where the application is made by the layout promoter;
(vi) Latest Patta, Permanent Land Records (PLR) or Town Survey Land Records (TSLR) and Field Measurement Book (FMB) sketches for the survey fields covered in the entire layout;
(c) A self declaration in Form-II to the effect that the layout is not attracted under the provisions of the Tamil Nadu Urban Land (Ceiling and Regulation) Act, 1978 (Tamil Nadu Act 24 of 1978) and the Tamil Nadu Land Reforms (Fixation of Ceiling on Land) Act, 1961 (Tamil Nadu Act 58 of 1961);
(d) In case of applications submitted by layout Promoter / Society / Association, an undertaking in a non-judicial stamp paper of value not less than twenty rupees in Form-III agreeing to undertake the rectification works as directed by the Competent Authority and remit the development charges, regularisation charges and Open space reservation charges as applicable as assessed by the Competent Authority; In suo-
motu cases specified in rule 5(4), the plots falling in spaces specified for rectification in the layout by the competent authority will not be regularized to the extent of required rectification.
(e) Any other document as may be required by the Competent Authority”
8. Rule 3 of the Rules of 2017 provides that only those unapproved layouts, where a part or full number of plots have been sold through a registered sale deed as on 20.10.2016 shall be Page 12 of 20 https://www.mhc.tn.gov.in/judis W.P.No.22618 of 2022 considered for regularization under these rules. The unsold plots are eligible for regularization in layouts where at least a part of the total number of plots have been sold through a registered sale deed as on 20.10.2016.
9. Rule 5 of the Rules of 2017 makes it mandatory to have approval of the individual plot owners or the layout promoters, eligible under Rule 3 of the Rules to file an application on-line in Form-1 for regularisation. Rule 5 is thus, not unguided, rather, it is subject to eligibility of the individual plot owners or layout promoters, and thereby, the application under Rule 5 of the Rule of 2017 can be made by those who are eligible under Rule 3 of the Rule of 2017. We do not find any conflict between Rule 3 and Rule 5(1) of the Rules of 2017, so as to strike down them down.
10. The application for regularization was to be given within six months from the date of commencement of the Rules, as given under Rule 5(1) of the Rule of 2017. It is however a fact that the period was extended from time to time. The Government Orders dated 13.10.2017 and 02.05.2018 were brought for extension of the time limit till 16.11.2018 for regularization of the plots and layouts. Page 13 of 20 https://www.mhc.tn.gov.in/judis W.P.No.22618 of 2022
11. Thus, instead of a period of six months given in Rule 5(1) of the Rules of 2017, extension was given for seeking regularization of plots and layouts till 16.11.2018. The another Government Order was issued on 05.02.2019 to provide that if an application online for any one plot in the layout has been made within the time-limit, the remaining plot in the layout, whether sold, unsold can be regularized separately at any time by submitting application along with the payment for delayed application.
12. The extension of period did not end there also because the Member Secretary, Chennai Metropolitan Development Authority, issued a letter on 13.01.2021 to extend the period further if the layout is formed on or before 20.10.2016 and at least one plot should have been sold and the document should have been registered in the said layout.
13. The Government, thereupon, came up with another order dated 25.01.2021 to extend the period for persons who missed out the chances and purchased the plots from unapproved layouts. One- Page 14 of 20 https://www.mhc.tn.gov.in/judis W.P.No.22618 of 2022 time opportunity was given by extending the period to 28.02.2021, for regularisation of plots sold or unsold in the unapproved layout if at least one plot in the said layout was registered on or before 20.10.2016.
14. The facts aforesaid have been narrated to indicate that going against the direction of this Court, the respondents liberally extended the period for regularization of layout and the individual plots. We deprecate the practice of the respondents in doing so, otherwise, it is nothing but to extend the benefit to those who were sleeping over the matter and not vigilant enough to seek regularization of the layout or the plots. The extension was also nothing but to extend benefit to the defaulters and for that, even the respondents went against the order of the High Court. It is also a fact that this Court in W.P.No.19566 of 2015 by its order dated 09.09.2016, directed that no Registering Authority shall register any sale deed in respect of any plots in unauthorized layouts or any flats/building constructed on such plots. The order was passed by the Court finding necessity to prevent further development of unauthorized layouts and conversion of agricultural areas for non- Page 15 of 20 https://www.mhc.tn.gov.in/judis W.P.No.22618 of 2022 agriculture use in an unplanned manner and also to save ecology and prevent flooding etc. Paragraph 6 of the order is quoted hereunder:
“6. We thus hereby direct that no Registering Authority shall register any sale deed in respect of any plots in unauthorized lay outs or any flats/building constructed on such plots. This order becomes necessary to prevent further development of unauthorized lay outs and conversion of agricultural areas for nonagriculture use in an unplanned manner, as also to save ecology and prevent flooding, while simultaneously giving time to the Government to come forth with the necessary policy documents and Legislative changes.”
15. Despite specific direction of the Court on the judicial side, the respondents are acting against the spirit of the order. We do not find any reason to extend the time only for the reason that the petitioner failed to make an application within the time specified, rather, made an application on 04.04.2022. The legislation cannot be struck down to address the difficulty of the individual and that too of a defaulter. Even after five to six extensions, if one fails to make an application and if extension is to be given to accommodate such a person, it would be a never ending process and thereby, the Page 16 of 20 https://www.mhc.tn.gov.in/judis W.P.No.22618 of 2022 very object to bring the Rules of 2017 would be defeated. It is for the reason that in the absence of the final cut-off date, the respondents would not take action under Rule 15 of the Rules of 2017.
16. The effect of the extension has led to illegal use of agricultural land, creating jungle of concrete to imbalance the ecology, and mushroom growth of encroachment on account of the total failure of the Government officials to take care of the Government poromboke land and even waterbodies. Thus, apart from the mushroom growth of unapproved layouts and individual plots, negligence and inaction of the officials has led to vanishing of waterbodies, tanks, wetlands etc. It is despite the fact that the matter of wetland has been taken up by this Court pursuant to the direction of the Supreme Court to save the wetlands and even ecology. The purpose to bring the Rules would be defeated if the respondents would keep on extending the dates and not take action under Rule 15 of the Rules of 2017.
17. We strongly condemn the practice of the Government Page 17 of 20 https://www.mhc.tn.gov.in/judis W.P.No.22618 of 2022 officials in extending the time frequently to benefit those who defaulted in making the application. In any case, it cannot be an endless extension. Therefore, if the petitioner failed to make application within time, Rules 3 and 5 of the Rules of 2017 cannot be struck down only for his convenience, more so when the petitioner is said to have sold the plot even prior to 20.10.2016.
Thus, it is for the purchaser to seek regularisation, and not for the petitioner.
18. For all the reasons given above, the writ petition fails and is dismissed. There will be no order as to costs. Consequently, WMP No.21676 of 2022 is closed.
(M.N.B., CJ.) (N.M., J.) 02.09.2022 Index : Yes/No tar Page 18 of 20 https://www.mhc.tn.gov.in/judis W.P.No.22618 of 2022 To:
1.The Principal Secretary to Government Housing and Urban Development (UD4(1) Department Fort St. George, Chennai 600 009.
2.The Secretary to Government Housing and Urban Development (UD4(3) Department Fort St. George, Chennai 600 009.
3.The Director Directorate of Town and country Planning 2nd, 3rd and 4th Floor, C and E Market Road Koyambedu Chennai - 600 107.
4.The Assistant Director of Town and Country Planning District Town Planning Officer No.56/A TADCO Complex Government Hospital Road Villupuram District.Page 19 of 20
https://www.mhc.tn.gov.in/judis W.P.No.22618 of 2022 M.N.Bhandari, CJ.
and N.Mala, J.
(tar) W.P.No.22618 of 2022 02.09.2022 Page 20 of 20 https://www.mhc.tn.gov.in/judis