Madras High Court
E.Kumaraswamy vs The State Of Tamil Nadu on 19 December, 2017
Author: S.Vaidyanathan
Bench: S.Vaidyanathan
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 19.12.2017 CORAM: THE HONOURABLE MR.JUSTICE S.VAIDYANATHAN W.P.No.30609 of 2017 E.Kumaraswamy rep. by Power of Attorney Agent, R.Prabhu ... Petitioner Vs. 1. The State of Tamil Nadu, rep. by its Principal Secretary to the Government, Housing and Urban Development Department, Secretariat, Fort St. George, Chennai 600 009. 2. The Commissioner, Directorate of Town and Country Planning, Opp. to LIC, Chengalvarayan Building, Fourth Floor, 807, Anna Salai, Chennai 600 002. 3. The Assistant Director, Town and Country Planning, Thiruvallur Zone, No.43/397A, 2nd Floor, Annai Indhra Gandhi Salai, Rajaji Part - II, Thiruvallur - 602 001. 4. The Special Officer/Block Development Officer, Thiruvallur Panchayat Union, Kakkalur Panchayat, Thiruvallur Taluk & District. ... Respondents Writ Petition filed under Article 226 of the Constitution of India, praying for issuance of a Writ of certiorari, calling for the records of proceedings of the 3rd respondent dated 09.11.2017 bearing Na.Ka.1157/2017/Thivama2, quash the same. For Petitioner : Mr.R.Murali For Respondents 1 to 3 : Mr.S.Diwakar, Special Government Pleader For 4th Respondent : Mr.Sanjay Gandhi O R D E R
The petitioner has come up with this Writ Petition challenging the proceedings dated 09.11.2017 passed by the 3rd respondent.
2. According to the petitioner, the land comprised in Survey No.82/2 measuring an extent of acre 1.10 cents situated at Kakkalur Village, Thiruvallur District, which was owned and possessed by one K.Nagammal, K.Jegan and K.Mohan were settled in his favour vide Settlement Deed, dated 25.11.2015 registered as Doc.No.13062 of 2015 before SRO, Thiruvallur. Thereafter, the revenue records pertaining to the said lands were mutated in his name and he appointed one Prabhu as his Power Agent for the said land, vide Settlement Deed dated 04.03.2016. Pursuant thereto, the Power Agent developed the said land into layout consisting of 30 plots and sold 21 plots in the said layout to various third parties.
3. A Public Interest Litigation was filed before this Court in W.P.No.19566 of 2015 to forbear the authorities from giving approval or permission to convert agricultural lands into layouts and also to forbear the registration of the same and in the said Writ Petition, the First Bench of this Court passed an order dated 09.09.2016 to the effect that the Registering Authority shall not register any sale deed in respect of any plot in unauthorized layouts or any flat/building in such plots. While the interim order dated 09.09.2016 was in force, the State Government, vide G.O.Ms.No.123, Commercial Taxes and Registration (J2), dated 20.10.2016, enforced Section 22-A of the Registration Act, 1908 incorporated by Tamil Nadu Act 2 of 2009 and since, no Rules have been framed for regularisation of unapproved layout and change of land use, the First Bench passed interim orders dated 21.10.2016, 28.03.2017 and 21.04.2017. Later, the 1st respondent, in exercise of the powers conferred under Section 113 of the Tamil Nadu Town and Country Planning Act, 1971 exempted all unapproved layouts, where, any or all plots sold and registered on or before 20.10.2016 from the operation of all the provisions of the Tamil Nadu Town and Country Planning Act, 1971.
4. Pursuant thereto, the First Bench of this Court passed an order dated 12.05.2017 in W.P.No.19566 of 2015 and issued a direction that the Plots may be registered strictly in accordance with Section 22-A of the Registration Act, 1908, incorporated by Tamil Nadu Act 2 of 2009, read with the Tamil Nadu Regularisation of Unapproved Layouts and Plots Rules, 2017. The petitioner's Power Agent, Prabhu applied for regularisation of the said layout vide application dated 08.08.2017 and on scrutiny of the said application, the 3rd respondent, vide letter dated 01.09.2017 directed the 4th respondent to receive the road and park as gift and to forward a copy of the Gift Deed and Encumbrance Certificate to the office of the 3rd respondent and also approved the Layout Framework vide D.T.C.P.No.55/2017 on 01.09.2017. Also, the petitioner paid regularisation and development charges to the 4th respondent and the 3rd respondent acknowledged the receipt of the same.
5. Pursuant to the said approval, the petitioner's Power Agent sold the remaining 7 plots comprised in the approved layout in D.T.C.P.No.55/2017 through various sale deeds dated 13.09.2017 and 18.09.2017 to third parties and the same were registered before the Registration Authority. Thereafter, the Government of Tamil Nadu amended the said Rules, 2017 vide G.O.(Ms.) No.172, dated 13.10.2017 extending the regularisation period from six months, i.e. from 03.11.2017 to 03.05.2018 and also reduced the charges. According to the petitioner's Power Agent, all the charges as required under the Rules, 2017, prior to amendment were paid by the petitioner, though it was higher than the amount fixed in the amendment.
6. Learned counsel for the petitioner submitted that approval was made even prior to the introduction of the Rules and even assuming that the new Rule and Scheme is made applicable, papers have been routed only through the 2nd respondent, who has attested/approved the same and the withdrawal order, which is the subject matter of the Writ Petition is completely illegal and it has to be interfered with by this Court.
7. Learned Special Government Pleader appearing for the official respondents submitted that the impugned order dated 09.11.2017 is clear and it speaks for itself and hence, there is no need to file counter. According to him, approval has to be routed through a different Department and in the present case on hand, the application was not routed through the Town and Country Planning officials and that, it has not been vetted, but approval granted was withdrawn. He further submitted that the petitioner is not prejudiced by the impugned order, as it is open to the petitioner to file a fresh application along with necessary documents and that the charges payable has already been reduced by means of the present amendment. He contended that the Writ Petition is devoid of merits and it is liable to be dismissed.
8. In reply, learned counsel for the petitioner submitted when the petitioner paid all the requisite charges, higher than what is prescribed under the provisions/Rules and when the application has been vetted by the Office of the Commissioner of Town and Country Planning, more particularly, by the Assistant Director, the contention of the Special Government Pleader appearing for the respondents, has to be rejected.
9. Heard the learned counsel on either side and perused the material documents available on record.
10. It is not in dispute that the new Scheme is meant only for the purpose of regularisation of unapproved layouts and plots and it is not applicable to the illegal constructions made in contravention of the Planning Permit already granted.
11. For better appreciation, the Preamble to the Rules framed with regard to Regularisation of Unapproved Plots and Layout Rules, 2017 under Section 113 read with Section 122 of the Tamil Nadu Town and Country Planning Act, 1971, is extracted hereunder:
"NOW THEREFORE, in exercise of the powers conferred by section 113 of the Tamil Nadu Town and Country Planning Act, 1971 (Tamil Nadu Act 35 of 1972), the Governor of Tamil Nadu hereby exempts all unapproved layouts, where any or all plots are sold and registered on or before the 20th October 2016 and all unapproved plots which are sold and registered on or before the 20th October 2016 from the operation of all the provisions of the Tamil Nadu Town and Country Planning Act, 1971 (Tamil Nadu Act 35 of 1972).
12. Also, relevant portion of the Operational Guidelines framed under the Unapproved Layout Regularisation Scheme, 2017, is extracted below:
"(7) The framework of the layout shall be vetted on-line by the Office of the Commissioner of Town and Country Planning. After vetting, the drawing showing the road pattern and OSR location shall be uploaded in the web portal by the planning authority/regional office for viewing and downloading as well. A copy of such drawing shall be sent to the local body, the layout promotor and the sub-registrar office for gifting the space for roads & OSR. A copy of the drawing shall also be sent to the Assistant Director of Survey and Land Records department for carrying out revenue sub-division and mutation of records for the roads & OSR in favour of the concerned local body. After ensuring the gifting to the local body and revenue sub-division made for the roads & OSR, the planning authority/regional office shall grant in-principle approval for the layout framework by assigning approval number and send the same to the local body. Simultaneously, the same shall be punished in the web-portal for viewing and downloading."
13. A reading of the Operational Guidelines cited supra, makes it clear that the layout shall be vetted online by the Office of the Commissioner of Town and country Planning. Unless and otherwise, the person who has vetted is not the competent authority, the contention of the respondents that it has got to be vetted only by the Commissioner of Town and Country Planning, cannot be accepted.
14. Further, it is seen that prior to the amendment, based on the new Regulation/Rules, layout has been approved. The relevant extract from the Operational Guidelines framed under Unapproved Regularisation Scheme, 2017 will give a quietus to the issue on hand. Even going by the Rules and the unapproved Regularisation Scheme 2017, the 3rd respondent has gone through the documents and only thereafter, approval has been granted, as could be seen from the proceedings of the 3rd respondent/Assistant Director, Town and Country Planning, Thiruvallur Zone, dated 11.09.2017. When there is proper scrutiny of the documents and when the application has been processed by the 3rd respondent, withdrawal by means of the impugned communication that the papers have not been routed through the Town and Country Planning Department, may not be correct. Hence, I find much force in the contentions of the learned counsel for the petitioner.
15. In such view of the matter, this Court is of the view that the Writ Petition has to be allowed and accordingly, it is allowed. No costs. Consequently, connected W.M.P.No.33514 of 2017 is closed.
19.12.2017 Index : Yes Internet : Yes Note to Registry:
Issue copy of this order on or before 12.01.2018.
(aeb) To:
1. The State of Tamil Nadu, rep. by its Principal Secretary to the Government, Housing and Urban Development Department, Secretariat, Fort St. George, Chennai 600 009.
2. The Commissioner, Directorate of Town and Country Planning, Opp. to LIC, Chengalvarayan Building, Fourth Floor, 807, Anna Salai, Chennai 600 002.
3. The Assistant Director, Town and Country Planning, Thiruvallur Zone, No.43/397A, 2nd Floor, Annai Indhra Gandhi Salai, Rajaji Part - II, Thiruvallur - 602 001.
4. The Special Officer/Block Development Officer, Thiruvallur Panchayat Union, Kakkalur Panchayat, Thiruvallur Taluk & District.
S.VAIDYANATHAN, J.
(aeb) Order in W.P.No.30609 of 2017 19.12.2017