Madras High Court
M/S.Sams Axis City Promoters vs The Member Secretary on 5 September, 2008
Author: P.Jyothimani
Bench: P.Jyothimani
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 05/09/2008 CORAM THE HON'BLE MR.JUSTICE P.JYOTHIMANI W.P.(MD)No.3083 of 2008 and connected miscellaneous petitions M/s.Sams Axis City Promoters Private Limited rep. By its Director, 402, Tulip Building, Sadguru Garden Complex, Thane (East) Mumbai rep. By its Regional Office at No.5, Rajachar Street T.Nagar, Chennai 17. .. Petitioner vs. 1. The Member Secretary The Trichirappalli Local Planning Authority Trichirappalli. 2. The Commissioner Trichirappalli Corporation Trichirappalli. 3. The Director Tamil Nadu Town and Country Planning, Anna Salai, Chennai. .. Respondents Prayer Writ petition filed under Article 226 of the Constitution of India praying to issue a Writ of Certiorarified Mandamus for the relief stated therein. !For petitioner ... Mr.V.T.Gopalan,Sr.Counsel for Mr.F.B.Benjamin George ^For respondents... Mr.R.Janakiramulu Spl. Government Pleader for R. Mr.P.Srinivas for R. ----- :ORDER
The writ petition is directed against the order of the first respondent dated 25.1.2008 with a direction against the first respondent not to treat the lands situate in survey Nos.126/6, 125/2, 125/1B in Varaganeri Village, Trichy taluk earmarked for "public purpose and road" in view of the scheme called, "Varaganeri South Development Scheme, having lapsed by virtue of Section 38 of the Tamil Nadu Town and Country Planning Act, 1971.
2. The petitioner Company own lands to a total extent of 5 Acres and 5 cents situate in Survey Nos.126/6 (2 Acres and 0.5 cents), 125/2 (2 Acres) and 125/1B (1 Acre) at Varaganeri village, Trichy taluk having purchased the same by various sale deeds in the year 2007. The petitioner Company has approached the first respondent for granting approval for construction and development of the said lands. In order to obtain a classification certificate, which has to be annexed with the proposal, the petitioner has approached the second respondent, Commissioner of Trichirapalli Corporation by letter dated 28.12.2007 for issuance of classification certificate. In the meantime, the first respondent has informed that the Government has formulated a Scheme called, Varaganeri South Development Scheme and notification has been issued on 4.4.1962 for development as per the said scheme notified by the Government and that the lands in the abovesaid survey numbers have been reserved for public purpose as per the Rules framed under the Tamil Nadu Town and Country Planning Act, 1971 (herein after referred to as "the Act").
3. The first respondent, on 22.3.2002, in the prescribed Form No.9 published in the Tamil Nadu Government Gazette on 15.5.2002 has communicated the preparation and sanction of the detailed development plan, which included the properties of the petitioner and other properties. However, the case of the petitioner Company is that till date the Government has not taken any steps to acquire the lands, nor issued any notice for acquisition under Sections 36 and 37 of the Act. The detailed development plan was ultimately given final approval as per Section 29 of the Act by the Government on 16.3.2005. However, till date, there was no further action upon the detailed development plan approved by the Director of local authority. Even though the third respondent has approved the draft scheme, the first respondent has not implemented the same and no steps have been taken under section 36 or 37 of the Act for acquisition. In those circumstances, the petitioner has given a letter to the first respondent on 28.12.2007 requesting to clarify as to the classification of the lands purchased by it and by the impugned letter dated 25.1.2008, the first respondent has clarified that the properties in survey Nos.126/6 and 125/2 are earmarked for 'public purposes'. In respect of survey No.125/1B, the first respondent informed that as per the Scheme, 40 ft. road is coming up in the said property. By invoking the provisions of the Right to Information Act, the petitioner approached the second respondent to explain about the present position, however, there was no reply. In these circumstances, the present writ petition is filed for the relief as stated above.
4. In the counter affidavit filed by the first respondent, it is stated that Varaganeri South detailed Development Scheme was formulated by order of the Government and notified in official Gazette dated 4.4.1962. It was finally approved by the Director of Town and Country Planning under section 29 of the Act and published in the Gazette on 16.3.2005. As per the approved scheme, survey No.126/6 is earmarked for public purpose (part) and mixed residential (part) while survey No.125/2 is earmarked for public purpose (part) and B1B140 ft. road (part) B2B2 40 ft. road (part), mixed residential (part). The said fact was communicated to the petitioner by the impugned order dated 25.1.2008. It is also stated by the first respondent that the scheme was approved by the third respondent and notified by the Member-Secretary, Trichy on 30.12.2004 and published in the Tamil Nadu Government Gazette on 16.3.2005. It is also specifically admitted that as per the letter of the second respondent Corporation dated 9.4.2008, the Corporation, due to lack of funds, informed that it has no plan to acquire the said lands. However, it is stated by the first respondent that as per the Division Bench order of this Court in W.A.Nos.156/00 and 45/03, the lands which are reserved for public purpose should not be used for any other purpose.
5. Mr.V.T.Gopalan, learned senior counsel appearing for the petitioner by referring to various provisions of the Tamil Nadu Town and Country Planning Act, 1971, submitted that as per the provisions of the said Act, within three years from the date of draft notification, the lands which are earmarked for public purpose are to be acquired and his contention is that as per proviso to section 37(2) and section 27 read with section 38 of the Act, in the absence of such action within the stipulated time, the lands are deemed to be released. He would also submit that when the second respondent Corporation has taken a categoric stand that there is no proposal for acquiring the lands, necessarily, it is the duty of the first respondent to release the lands and the scheme should be deemed as coming to an end. As far as the direction of the Division Bench of this Court in W.A.No.156/00, relied upon by the first respondent in the counter affidavit is concerned, the contention of the learned senior counsel is that as per various portions of the said judgement it is clear that the observation is not a binding precedent but it is a passing reference. He would also submit that in any event, the provisions of the Act are very clear. Relying upon the judgement of the Supreme Court in Narmada Bachao Andolan vs. Union of India [2000(10) SCC 664] and in Union of India vs. Chajju Ram (dead) by LRs. and others [2003(5) SCC 568], he would contend that the Court is bound by the statutory provisions.
6. On the other hand, it is the contention of the learned Special Government Pleader that when the Scheme has been approved by the Government under section 28 and also by the Director under section 29 of the Act, the same cannot be stated to have lapsed and the public purpose for which the lands are earmarked in the scheme continues to be the same and therefore, it is not open to the petitioner to ask for the release of the said properties.
7. I have considered the contentions of the learned senior counsel for the petitioner and the learned Special Government Pleader for the respondents, perused the entire records and also given my anxious thought to the issue involved in this case.
8. As per the provisions of the Tamil Nadu Town and Country Planning Act, 1971, a detailed development plan can be prepared by local planning authority by way of resolution, which has to be notified in the District Gazette concerned with various particulars. Such power of the local planning authority is conferred under section 19 of the Act, which is as follows:
" 19. Declaration of intention to make or adopt a detailed development plan.-
(1) A local planning authority may, by resolution, decide,-
(a) to prepare a development plan to be called the "detailed development plan" in respect of any land within its planning area; or
(b) to adopt with or without modifications a detailed development plan proposed by all or any of the owners of any such land. (2) The resolution under sub-section (1) shall be published by the local planning authority in the prescribed manner by notification in the District Gazette concerned and such notification shall contain such particulars as may be prescribed and specify the time and place where a plan of the area may be inspected."
9. Even though the term, 'local planning authority' is not defined in the Act, the Act has chosen to define the term, 'local authority' under section 2(23), which is as follows:
"local authority" means -
(i) the Municipal Corporation of [Chennai] or of Madurai; or
(ii) a Municipal Council constituted under the Tamil Nadu District Municipalities Act,1920 (Tamil Nadu Act V of 1920); or
(iii) a Township Committee constituted under the Tamil Nadu District Municipalities Act,1920 (Tamil Nadu Act V of 1920), or the Tamil Nadu Panchayats Act, 1958 (Tamil Nadu Act XXXV of 1958), or under any other law for the time being in force, or the Mettur Township Act,1940 (Tamil Nadu Act XI of 1940), or the Courtallam Township Act,1954 (Tamil Nadu Act XVI of 1954), or he Bhavanisagar Township Act,1954 (Tamil Nadu Act XXV of 1954); or
(iv) a Panchayat Union Council or a Panchayat constituted under the Tamil Nadu Panchayats Act,1958 (Tamil Nadu Act XXXV of 1958)."
On the facts of the case, there is no difficulty that the second respondent Corporation is the local authority as per section 2(23) of the Act, which has to be construed as local planning authority as contemplated under section 19.
10. Section 20 of the Act which speaks about the contents of the detailed development plan. While narrating various structures and buildings, constructions, etc., section 20(1)(k) stipulates about the reservation of lands for street, road, etc. and the said section is as follows:
"20. Contents of detailed development plan.-
(1)A detailed development plan may propose or provide for all or any of the following matters, namely:-
(a) to (j) xxxxxx
(k) the allotment or reservation of land for streets, roads, squares, houses, buildings for religious and charitable purposes, open spaces, gardens, recreation grounds, schools, markets, shops, factories, hospitals, dispensaries, public buildings and public purposes of all kinds and defining and demarcating of, the reconstituted plots or the areas allotted to or reserved for, the above mentioned purposes;"
After the proposal with contents under section 20, the local planning authority within the stipulated time and after consulting with the owners of the buildings, etc. would submit a detailed development plan to the Director of Town and Country Planning appointed under section 3 of the Act. The said obligation of the local planning authority is stipulated under section 21 of the Act.
11. In addition to the powers of the local planning authority to prepare such a plan and submit to the Director, the Director himself is empowered to require the local planning authority to prepare such a detailed development plan in respect of any area as per section 23 of the Act. After the proposal of detailed development plan has been submitted to the Director by the local planning authority within the stipulated time, the Director may direct the local planning authority to make such modifications as he thinks fit in public interest and after such modifications are made, it is for the Director to give consent to the local planning authority for publication of notice under section 27(1) of the Act as enshrined under section 25 of the Act which is as follows:
" 25. Consent of the Director to the publication of notice of preparation of the detailed development plan.-
(1) As soon as may be, after the detailed development plan has been submitted to the Director but not later than such time as may be prescribed, the Director may direct the local planning authority to make such modifications in the detailed development plan as he thinks fit in the public interest and thereupon the local planning authority shall make such modifications and resubmit it to him.
(2) The Director shall, after the modifications, if any, directed by him, have been made, give his consent to the local planning authority to the publication of a notice under sub-section (1) of section 27, of the preparation of the detailed development plan."
12. After the Director gives consent to the local planning authority under section 25(2) of the Act, the local planning authority has to publish a notice in the Tamil Nadu Government Gazette under section 27 of the Act and also in a leading daily newspaper of the region about the preparation of the detailed development plan with other particulars calling the public to inspect and file objections and suggestions, etc. by giving time which shall not be less than two months from the date of publication. The said section also enables the local planning authority to allow a reasonable opportunity of being heard to any person including the Government department, etc. and after such hearing, the plan shall be submitted to the Director. The said section 27 reads as follows:
" 27. Notice of the preparation of the detailed development plan.-
(1) As soon as may be, after the local planning authority has received the consent if the Director under sub-section (2) of section 25 to the publication of the notice, the local planning authority shall publish the notice in the Tamil Nadu Government Gazettee, and in leading daily newspapers of the region of the preparation of the detailed development plan and the place or places where copies of the same may be inspected, inviting objections and suggestions, in writing, from any person in respect of the said plan within such period as may be specified in the notice:
Provided that such period shall not be less than two months from the date of the publication of the notice in the Tamil Nadu Government Gazettee.
(2) After the expiry of the period mentioned in sub-section (1), the local planning authority shall allow a reasonable opportunity of being heard to any person including representatives of Government departments and authorities, who have made a request for being so heard and make such amendments to the detailed development plan as it considers proper and shall submit the said plan with or without modifications to the Director."
13. Under section 29 of the Act, after such submission of the proposal for modified plan based on the public enquiry, the Director may approve the plan either with modification as submitted by the local planning authority or return the same to the local planning authority to modify or to prepare a fresh plan in accordance with the directions as may be issued by the Director. The said section 29 is as under:
" 29. Approval by the Director.-
As soon as may be, after the submission of the detailed development plan, but not later than such time as may be prescribed, the Director may, either approve the said plan or may approve it with such modifications, as he may consider necessary, or may return the said plan to the local planning authority to modify the plan or to prepare a fresh plan in accordance with such directions as the Director may issue in this behalf and resubmit it to him for approval."
14. After the said approval by the Director, on resubmission by the local planning authority, the local planning authority under section 31 of the Act must again publish the notice in the Tamil Nadu Government Gazette and in a leading daily newspaper stating the place or places and time at which the plan shall be open for inspection of the public and such notice published under section 31(1) is conclusive evidence though the detailed development plan has been duly made and approved and the plan shall come into operation from the date of publication of the said notice in the Tamil Nadu Government Gazette. Section 31 is as follows:
" 31. Coming into operation of the detailed development plan.-
(1) Immediately after the detailed development plan has been approved by the Director, the local planning authority shall publish a notice in the Tamil Nadu Government Gazettee and in the leading daily newspapers of the region of the approval of the detailed development plan and such notice shall state the place or places and time at which the said plan shall be open to the inspection of the public.
(2) A notice published under sub-section (1) shall be conclusive evidence that the detailed development plan has been duly made and approved. The said plan shall come into operation from the date of publication of such notice in the Tamil Nadu Government Gazettee."
15. Under section 33 of the Act, the detailed development plan as approved under section 29 can be revoked or varied by a subsequent plan and approved, in which event, again the provisions of sections 27, 29 and 31 would apply. Under section 36 of the Act, there is a presumption that any land which is required, reserved or designated in the detailed development plan for a public purpose is deemed to be a land needed for public purpose within the meaning of the Land Acquisition Act. Therefore, it enables the Government to acquire such portion of the lands under the Central Act, 1894. In this regard it is necessary to extract Section 36, which reads as under:
" 36. Power to acquire land under the Land Acquisition Act.- 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 1 of 1894) and may be acquired under the said Act as modified in the manner provided in this Act."
16. It is True that section 37 enables the appropriate planning authority to enter into an agreement with such persons who are the owners of the lands earmarked for various purposes or to approach the authority invoking the provisions of the Land Acquisition Act. When the local planning authority resorts to the process of acquisition, the Government can issue a declaration without resorting to the provisions of section 4 of the Land Acquisition Act and such declaration will be deemed to be a declaration under section 6 of the Land Acquisition Act. However, the proviso to section 37(2) makes it clear that such declaration in respect of the lands covered under sections 26 and 27 of the Act can be issued only within a period of three years from the date of notice issued under section 27(1) of the Act. For the proper understanding of the procedure, it is necessary to extract section 37, which is extracted as under:
" 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 Gazettee of preparation of a regional plan, master plan, detailed development 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 make an application to the Government for acquiring such land under the Land Acquisition Act, 1894 (Central Act 1 of 1894):
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 Gazettee, in the manner provided in section 6 of the Land Acquisition Act,1894 (Central Act 1 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 f 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 Gazettee under section 26 or section 27, as the case may be."
17. At this stage, it is also relevant to refer section 38 of the Act which makes it abundantly clear that in the event of declaration not having been made within three years from the date of publication of notice under section 27 of the Act as mandated under section 37 of the Act as stated above or not acquiring the lands by agreement, such lands are deemed to be released from such reservation, allotment or designation. Section 38 reads as under:
" 38. Release of land.-
If within three years from the date of the publication of the notice in the Tamil Nadu Government Gazettee 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 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."
18. Therefore, from the reading of the provisions of the Act in respect of preparation and implementation of detailed development plan, it is clear that after notice issued under section 27(1) of the Act, it is the duty of the authority either to acquire the lands under the Land Acquisition Act (Central Act) by which straight away issuing a declaration under section 6 or to enter into an agreement for acquisition and in either of these process, the acquisition should be completed within a period of three years from the date of publication of notice under section 27(1) of the Act.
19. On applying the said provisions of the Act to the facts of the case, as it is stated in the counter affidavit of the first respondent, it is seen that the notification in the official Gazette was originally published on 4.4.1962 regarding formulation and development of Varaganeri South Detailed Development Scheme and the said scheme was finally approved by the Director of Town and Country Planning under section 29 of the Act which was published on 16.3.2005 as specifically admitted in the counter. The relevant portion of the counter affidavit is as follows:
"The Varaganery South detailed Development Scheme was formulated in accordance with the directions of Govt. Of Tamil Nadu vide notification in the official gazettee dated 04.04.1962 and the scheme was finally approved by the Director, Tamil Nadu Town and Country Planning u/s.29 of the TNCPA, 1971 and the same was published in the Tamil Nadu Gazettee on 16.03.2005. "
20. Therefore, on publication of the detailed development plan which has been approved by the Director as per section 29 of the Act, such publication having been effected in the Tamil Nadu Government Gazette on 16.3.2005, by application of section 31 of the Act, the detailed development plan has come into operation. The operation of the detailed development plan under section 31 is in fact after the notice of preparation under section 27(1) of the Act, which must be prior to 16.3.2005. Even if the date of publication under section 31 viz., 16.3.2005 is taken as relevant date for the purpose of deciding the limitation for acquisition under the proviso to section 37(2) of the Act, three years have lapsed in March, 2008 and it is the admitted case, as it is seen in the proceedings dated 9.4.2008 viz., the communication under the Right to Information Act, by the second respondent, Commissioner of Trichy Corporation, which is the Local Planning authority as per the provisions of the Act, that even though the said lands which are the subject matter of the writ petition are liable to be acquired, due to the reason that there are no sufficient funds, there is no proposal as on date to acquire the same. The said letter is as follows:
e/f/vz;/vg;1-2032-2008-ikak; jpUr;rpuhg;gs;sp khefuhl;rp ehs; 9/4/2008 jfty; mwpa[k; chpikr;rl;lk; 2005d; fPH; bjhptpf;fg;gLk; tpgu mwpf;if bghUs;;: jpUr;rpuhg;gs;sp khefuhl;rp jfty; mwpa[k; chpikr;rl;lk; 2005 - mhpak';fyk; nfhl;lk;
tufndhp bjw;F tp!;jhpg;g[ jpl;lk; - epyk; ifafg;gLj;Jjy; bjhlh;ghf
- tpgu';fs;
mspf;fg;gLjy; - bjhlh;ghf/ ghh;it: ,af;Feh;. !hk;!; Mf;!p!; rpl;o gpnuhnkhl;lh;!; gpiuntl; ypkpbll;. brd;id. fojk;
ehs; 19/3/08/ ////// ghh;itapy; fhQqk; tpz;zg;gj;jpy;. mhpak';fyk; nfhl;lk; tufndhp bjw;F tp!;jhpg;g[ jpl;lk; epyk; ifafg;gLj;Jjy; bjhlh;ghf tpgu';fs; nfhhpajw;F nfhg;gpy; cs;s Mtz';fspd; mog;gilapy; chpa tpgu';fs; bjhptpf;fg;gLfpwJ/ t/vz;/ nfhhpa tpgu';fs;
gjpy;1
rh;nt vz;fs;/126-6. 125-2 kw;Wk; 125-1gp cs;s epy';fs; nkw;go epWtdj;jpw;F brhe;jkhdit/ muR bf$l; btspaPL ehs; 16/3/05 Fwpg;gpl;Ls;s jkpHf murpd; gphpt[ vz;/29. efh; kw;Wk; Cuikg;g[r; rl;lk; 1971d; go mhpak';fyk; nfhl;lk; tufndhp bjw;F tp!;jhpg;g[ jpl;lj;jpw;F VJk; epy';fs; ifafg;gLj;j cs;ssjh vd;w tpguk; nfhUjy;/ kDjhuh; ,lk; tufndhp bjw;F tphpt[ mgptpUj;jpj; jpl;lj;jpy; bghJ cgnahfg; gFjpapy; mikfpwJ/ nkw;fz;l gFjp cs;shl;rp eph;thfj;jhy; Mh;$pjk; bra;ag;glntz;oa gFjpahFk;/ Mdhy; jw;nghJ nghjpa trjp ,y;yhj fhuzj;jpdhy; epy Mh;$[pjk; bra;a jpl;lk; VJk; ,y;iy/ (xk;) xxxx MizaUf;fhf jpUr;rpuhg;gs;sp khefuhl;rp bgWeh;
,af;Feh;
rhk;!; Mf;!p!; rpl;o gpnuhnkhl;lh;!; gpiuntl; ypkpbll;
5. uh$h bjU jpahfuha efh;. brd;id/
21. In the light of the factual position that the lands which are the subject matter of the writ petition belonging to the writ petitioner company have not been acquired, there is no difficulty to come to the conclusion that when more than three years have lapsed, certainly by application of the proviso to section 37(2), the respondents cannot now resort to the proceedings of acquisition. Secondly, as per the mandate of section 38 of the Act, as enumerated above, it is not only the duty of the respondents to release the lands but by application of law, the release is also presumed to have happened.
22. It is, in this regard, relevant to consider the contentions of the respondents by placing reliance upon an unreported judgement of this Court in W.A.Nos.156/00 and 45/03 dated 12.4.2007, wherein it was held that in respect of places which are earmarked for public purpose in a township like, park, etc., the same should be retained for the same purpose. The Division Bench in Sridevi Nagar Residents Welfare Association represented by its President,G.P.Godhanavalli, Coimbatore vs. Subbathal and others, was dealing with a case of a private layout approved in the year 1974 by the then Ganapathi Town Panchayat, in which certain portions were reserved for public purpose. The question raised and answered by the Division Bench was as follows:
" Whether a portion of land reserved for public purpose in a layout approved by the local body can be used for any other purpose is the specific question that arises for our consideration in the above appeals, while the issue at large is whether the land reserved for public purpose in any layout or in a development plan or master plan can be used for any other purpose at a later stage?"
While considering the plea made on behalf of the residents for the benefit of the colony, the Division Bench, by relying upon the decisions of the Apex Court, has held that the portions which are set apart for park as per the approved layout plan cannot be transferred for any other purpose. The operative portion of the judgement of the Division Bench is as follows:
"10. We, therefore, appreciate the interest of the residents of the area, who have purchased the plots as per the approved layout, that for the benefit of the ecology, certain areas should be earmarked for garden and park so as to provide fresh air to the residents of that locality. To that extent, we disagree with the learned Single Judge that the residents of the locality are not necessary parties for the simple reason that respondents 1 to 3 have got the layout approved, as per the proceedings dated 17.7.1994, with the specific conditions, referred to above, which becomes the part and parcel of the terms of the sale deeds. Therefore, virtually, these conditions, agreed by the land owner become the terms of covenant. Therefore, it would be too harsh to say that the residents of the locality are not proper parties.
11. The open space in a residential area or in busy townships is treated as lung space of the area. It provides fresh air and refreshment to the persons in the neighbourhood. Its presence ameliorates the hazards of pollution and it has to be preserved and protected for the sustenance of the men around. It is for the health and well-being of the inhabitants of the residential area. The same cannot be bartered for any other purpose. Apart from that, in view of the conditions imposed by the fifth respondent, by his proceedings dated 17.7.1974 addressed to the Executive Officer, Ganapathy Town Panchayat, which remain unchallenged by the owners of the layout land for all these years, the fourth respondent is estopped from using the area set apart as open space, for any other purpose.
12. Where open space for construction of public park is preserved and earmarked in the Plan for Development of a planned town, the Authorities cannot ignore or neglect to develop that open space into a public park within reasonable time. Unless an open space reserved for a public park is developed as such, the execution of the plan will remain incomplete. Buildings, as proposed in the plan, may have come up, amenities and civic amenities may have been provided and the people may have started living in the colony, yet the plan cannot be said to have been fully executed, if an open space meant for a park is not developed as such. The duty of the authorities is to implement the plan in entirety making the area beautiful with attractive public parks. Their job is not over when the area becomes habitable.
13. xxxx
14. We are therefore, of the firm opinion, that the statutes in force in India and abroad reserving open spaces for parks and play grounds are the legislative attempt to eliminate the misery of disreputably housing condition caused by urbanisation. Crowded urban areas tend to spread disease, crime and immorality. Reservation of one space for parks and play ground is universally recognised as a legitimate exercise of statutory power rationally related to the protection of the residents of the locality from the ill-effects of urbanisation and the Apex Court decisions referred supra, fully support the view that the area set apart for park as per the approved lay out plan, cannot be used or transferred for any other purpose."
23. A reading of the entire judgement makes it clear that it relates to a private layout approved by the competent authority under the Act in which certain places were earmarked for public purposes like, park, school, etc. and on the said factual matrix, while predominantly considering about the maintenance of ecological balance, the Division Bench held that the portions which are earmarked for public purpose like, park, school, etc. must be retained for the same purpose. That was not a judgement on the subject relating to the detailed development plan prepared as per the provisions of the Tamil Nadu Town and Country Planning Act, 1971, as enumerated above. The Division Bench had no occasion to analyse the provisions of the Tamil Nadu Town and Country Act, especially the statutory operation of section 37(2) and its proviso and the consequential obligation of release of land under section 38 of the Act. In respect of private layout, the promoters or developers, who are expected to develop only as per the approved layout keeping the public purpose intact, but under the detailed development scheme, which is prepared not by private parties but by the local planning authority, who in performing its statutory functions, not only bound to follow various procedures contemplated under the Act, but there is also legal obligation imposed upon the local planning authority to acquire, either by operation of the Land Acquisition Act or by way of agreement, viz., by private negotiation with owners, the lands which are earmarked for various public purposes like, road, etc. under the detailed development plan approved by the Director and notified in the Government Gazette. Therefore, the said direction of the Division Bench which was issued on the factual matrix of the said case before it cannot be taken as a precedent especially in the light of the statutory provisions contained in sections 37 and 38 of the Tamil Nadu Town and Country Planning Act, 1971.
24. While deciding about the binding effect of precedents, the Full Bench of the Hon'ble Supreme Court, in Union of India vs. Chajju Ram (dead) by LRs. and others [ 2003(5) SCC 568 ], has held that even a little difference in facts can lead to a different conclusion. The relevant portion of the judgement of the Apex Court is as follows:
" 23. It is now well settled that a decision is an authority for what it decides and not what can logically be deduced therefrom. It is equally well settled that a little difference in facts or additional facts may lead to a different conclusion."
25. While dealing with the effect of sections 87 and 85 of Bihar Reorganisation Act, 2000 relating to the deeming provision creating a legal fiction, the Hon'ble Supreme Court in Commissioner of Commercial Taxes, Ranchi and another v. Swarn Rekha Cokes and Coals (P) Ltd., and others reported in 2004 (6) SCC 689, has held that in interpreting such provisions of legal fiction, the purpose for which the fiction is created has to be gathered on the facts and circumstances of the case and also from the actual and real consequences. The relevant portion of the judgement of the Supreme Court at page 705 is as follows:
" The submission overlooks the provisions of Sections 84 and 85 of the Act, which create a legal fiction. It is well settled that in interpreting a provision creating a legal fiction, the court must ascertain the purpose for which the fiction is created and having done so, to assume all those facts and consequences which are incidental or inevitable corollaries to the giving effect to the fiction. When the law requires that an imaginary state of affairs should be treated as real, then unless prohibited from doing so, one must also imagine as real the consequences and incidents which, if the putative state of affairs had in fact existed, must inevitably have flowed from or accompanied it. As Lord Asquith in East End Dwellings Co.Ltd. vs. Finsbury Borough Council (1952 AC 109 (HL), All ER at p.589 observed that having done so, you must not cause or permit your imagination to boggle when it comes to the inevitable corollaries of that state of affairs."
26. Considering section 38 of the Tamil Nadu Town and Country Planning Act, 1971 which deems the release of property in the event of not acquiring within the stipulated time of three years as per proviso to section 37(2), based on the overall scheme and object of the Act and also on the factual circumstances, when the authority, viz., the Trichy Corporation has categorically decided that due to want of funds, there is no proposal to acquire the same, there is no difficulty to come to the conclusion that the deemed provision comes into effect automatically.
27. In an unreported judgement of the Supreme Court in Appeal (Civil) No.438/00 dated 23.2.2005 rendered in Balakrishna H.Sawant vs. Sangli, Miraj & Kupwad City M.Corporation and others, considering a similar situation where the Corporation has informed the Court that it has no sufficient financial resources for construction of high school and playground in a portion of the land in question reserved in the development plan under Maharashtra Regional and Town Planning Act,1966, it was held that such reservation will serve no purpose and the same is deemed to have lapsed by efflux of time and in view of the same, the reservation of the said portion of the land was quashed by the Supreme Court. The operative portion of the judgement is as follows:
" This Court granted special leave on 18th January,2000. When we took up this appeal for hearing, it was brought to our notice by counsel appearing on behalf of the respondent Corporation that by its resolution of 20th July,2002 the Corporation had resolved to the effect that the Corporation does not have sufficient financial resources to construct a high school and play ground on the land in question, and since the matter is pending before this Court the litigation may involve further expenditure. For the aforesaid reasons the Corporation does not need the subject land and for that purpose necessary proceedings at Government level may be initiated. It was also resolved to bring this resolution to the notice of this Court. It appears that subsequently a proposal was sought to be made by the Corporation to recall its resolution of 20th July,2002. The said proposal is dated 13th May,2003 but the Government of Maharashtra rejected the proposal and refused to permit the Corporation to revoke the earlier resolution. The communication of the Government of Maharashtra in this regard is dated 18th May,2004. Under the Maharashtra Regional and Town Planning Act, 1966 a modification of the Final Development Plan of a minor nature can be made by the planning authority. It also enables the State Government to direct the planning authority to make such modification, and on failure of the planning authority to carry out the direction, the State Government may itself notify the proposed modification inviting objections. It was, therefore, submitted before us that the procedural requirements of the Act are such that they are bound to take time. Counsel for the Corporation states that the resolution of July 20, 2002 stands and the respondent Corporation is bound by it and holds itself bound even today, meaning thereby, that the land shown as reserved in the Development Plan is not required by the Municipal Corporation as it does not have the resources to develop the said land and construct a high school and play ground over it. The stand of the State Government even before the High Court was that the reservation had lapsed. It is, therefore, apparent that the reservation will serve no purpose except to cause harassment to the appellant without any corresponding benefit to the respondent Corporation. Ultimately, the respondent Corporation may not take any steps to get the land acquired, and in that event, by efflux of time the reservation may again lapse.
With a view to avoid all these delays and complications, we quash the reservation in respect of the land in question owned by the appellant and allow this appeal. The impugned judgement and order of the High Court is accordingly set aside and the writ petition preferred by respondent Corporation is dismissed."
28. At this stage, it is relevant to point out that in a similar circumstance while deciding the provisions of sections 37 to 39 and 49 of the Tamil Nadu Town and Country Planning Act, 1971, A.Kulasekaran,J. in Casa Granade Private Ltd., vs. Chennai Metropolitan Development Authority rep. By its Member Secretary, Chennai reported in 2007 (3) MLJ 647, after referring to various judgements which are relevant to the facts of the said case, has held as follows:
"The State can prepare development plan covering the private lands, but no development can be made on that land unless the private land is acquired for development, even for providing amenities to the residents of the area."
29. In view of the above said legal position applied on the facts of the present case and in the light of the provisions of the Tamil Nadu Town and Country Planning Act, 1971, the impugned order of the first respondent dated 25.1.2008 is set aside and consequently, by application of section 38 of the Tamil Nadu Town and Country Planning Act, 1971, it is declared that the respondents are not entitled to treat the survey Nos.126/6, 125/2 and 125/1B in Varaganeri village as earmarked for public purpose under the Varaganeri South Development Scheme and the writ petition stands allowed. No costs. Connected miscellaneous petitions are closed.
kh To
1. The Member Secretary The Trichirappalli Local Planning Authority Trichirappalli.
2. The Commissioner Trichirappalli Corporation Trichirappalli.
3. The Director Tamil Nadu Town and Country Planning, Anna Salai, Chennai.