IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 27/04/2007
CORAM
THE HONOURABLE MR.JUSTICE P.K.MISRA
and
THE HONOURABLE MR.JUSTICE J.A.K.SAMPATHKUMAR
W.P. No.5051 of 1996
and
W.P. No.19015 of 1996
Karpaga Nagar Nala Urimai Sangam
represented by its Secretary Shanmugavel ..Petitioner in
both the W.Ps
Vs
1. Municipal Administration & Water Supply Dept.
Rep.by its Secretary
Chennai 2.
2. The Director of Town and Country Planning
Madras 2.
3. The Commissioner of Corporation
Madurai 625 002.
4. Pillayar Patti Karpaga Vinayagar Koil Nagarathar Trust
rep.by its Trustee
N.K. Lakshmanan
Pillayarpatti Pasumpon
Muthuramalingam District ..Respondents in
both the W.Ps
Prayer: Petitions under Article 226 of the
Constitution of India praying for the issuance of a writ of
certiorarified mandamus calling for the records of the first
respondent bearing G.O.Ms.No.244 dated 23.9.94 culminating
in ordr No.K2/85710/1994 dated 22.4.1996 and sanctioned plan
Ma.Va/Tha.V.E.994/1995, quash the same and direct the
respondents to forbear from dereserving the plots comprised
in R.S.No.120 to 126, 130 to 133, 176/1 to 178/2 measuring
2.5 acres in Karpaga Nagar, K.Pudur, Madurai or permit them
to be used for any purpose other than the public purposes
mentioned in L.P./MRI/75.
For Petitioners : Mr.N.L.Rajah
For R1 and R2 : Mr.P.Subrmaniam
For R3 : Mr.P.Srinivas
For R4 : Mr.R.Krishnamurthy, Senior Counsel for Mrs.A.L. Gandhimathi
COMMON ORDER
J.A.K.SAMPATHKUMAR, J.
These writ petitions are filed challenging the
notification issued by the Government on 23.9.1994 vide
G.O.Ms.No.244 of 1994 (Municipal Administration and Water
Supply Department) and also challenging the consequential
acts pursuant to issuance of the said G.O. and for praying
to quash the same.
2. The common plea in both the writs are as
follows:
The land presently known as Karpaga Nagar was
initially owned by the fourth respondent and extent of 73
acres and 60 cents of land in R.S.No.120 to 126, 130 to 133,
176/1 and 178/2 was owned by the fourth respondent in the
erstwhile Tallakulam Town Panchayat, Madurai District. The
fourth respondent formed a layout with an object of selling
their lands in survey Numbers referred above as house sites.
The entire extent was divided into 832 plots. The Director
of Town Planning, Madras gave approval for the said layout
vide LPMR 1/75. These lands were under the jurisdiction of
Tallakulam Town Panchayat before they were merged with the
Madurai Corporation in dated 30.1.1994.
3. The approval was granted subject to the
condition that an extent of 2.52 acres comprised in
R.S.No.120 to 126, 130 to 133, 176/1 and 178/2 should be
kept reserved for public purposes.
4. The third respondent had not provided any basic
amenities like roads etc. At the same time the third
respondent has been collecting road cost from the plot
owners as and when they apply for permission for
construction on the sites. In the meantime, the fourth
respondent some time in 1986 tried to sell to third parties
the forty plots reserved for public purposes like school,
temple, market, children’s park etc., as per lay out
approval.
5. In this regard, the then Commissioner of the
third respondent attended to the complaints of the
petitioner and effectively stopped such efforts by the
Fourth respondent by giving a notice to the trust not to
sell the plots reserved for public purposes. However, the
fourth respondent proposed to put up a building in plot Nos.
276 and 369 and applied for approval of the building plan.
Plot Nos. 276 and 369 formed part of the 2.52 acres which
was reserved for public purposes The approval for
construction was granted by the third respondent under the
mistaken impression that the said plots were in a
residential area. On realising the mistake subsequently,
the third respondent, refused to renew licence for
construction.
6. However, the fourth respondent filed a writ
petition i.e W.P.No.1565 of 1987 praying for a writ of
certiorarified mandamus to quash the order dated 16.12.1986
refusing permission and to direct the respondent to grant
permission for construction. The said writ petition was
allowed with the following directions:
“The application made by the petitioner for
sanction of building plan in the above plots
shall stand restored to the file of the
Madurai Corporation and shall be disposed off
within the statutory period. If no orders
are made within three months form today, on
the said application, the application will be
deemed to have been granted. It is made
clear that the application can be rejected
only in case in the detailed development plant
for this area the above plots come under the
identification, “Reserved for Public
purposes”. It is needless to state that the
petitioner will be given an opportunity to be
heard in person if he so desires, in the
matter of sanction of plan”.
This order was only with reference to two plots i.e.Nos.276
and 379.
7. While matters stood thus, the petitioners were
shocked to find sometime in the second week of February that
the fourth respondent was trying to take steps to sell the
plots earmarked for public purposes to third parties and the
petitioner instituted enquiries at the office of the third
respondent. They were given a copy of the G.O.Ms.No.244
dated 23.9.1984 wherein the first respondent had stated that
“In view of the order of the High Court Madras in
W.P.No.1565 of 1987 and W.M.P. No.338 of 1992 the Director
of Town and Country Planning has recommended the case for de-
reservation subject to the conditions that the trustee may
be requested to hand over the roads in the layout area to
the Municipal Corporation.”
In and by the said G.O., the first respondent has granted
permission for de-reservation of 2.52 acres of land
earmarked for school in the approved lay out L.P.M.R. 1/75
in R.S.No.92/94 etc., as residential area in Madurai
Corporation area. The said order dated 23.9.1994 is
illegal, vitiated by malafides, in excess of the powers of
the first respondent, in violation of the principles of
natural justice and deserve to be quashed.
8. The fourth respondent resisted this petition on
the following points:
8.1.The respondent trust formed in or about 1924, look
after religious and secular activities of Pilliyarpatti
Kovil for welfare of Nagarathar Community.
8.2.During the year 1930, Trust acquired properties
including lands in S.No.92, 94, 120 to 126, 130 to 133,
176/1, 178 Tallakulam Village. The said lands were divided
into plots for sale in order to augment income for Trust and
named as “Karpaga Nagar”. A detailed lay out plan
comprising 76.12 Acres was prepared and the same was got
approved on 19.5.1972 in P.R.No.21/72.
8.3. As per the approved lay out, plots were sold and
40 plots were retained by Trust (Plot No.272 to 281, 324 to
343, 364 to 373), roads as per the plan were formed and
gifted to panchayat During the year 1974, Tallakulam Town
Panchayat included in Madurai City Municipal Corporation.
Laws applicable to Corporation were extended from date of
extension of limits under Section 3(7) of Act XV of 1971.
Saving clause provides Corporation is bound by all acts of
Panchayat before extension. Therefore, the plan in
P.R.21/72 approved by the Town Panchayat will hold good.
8.4. However, since Madurai Corporation insisted to
revalidate the plan, Trust again applied for revalidation of
the Original Plan in 21/72. Plan No.1/75 showed 40 plots as
reserved for School. However since the Trust had already
obtained plan approval from the Town Panchayat, they had not
paid the development Charges to the Corporation.
8.5. But on 18.4.1979, Corporation demanded Rs.7.59
Lakhs for laying of Roads for approval of layout.
8.6. During 1979-80, Local Planning Authority of
Madurai prepared a detailed Draft Plan (DDP)for Pudur
Neighbourhood which also includes the lands of the Trust DTP
(MR)12/80. It also provides for residential areas,
industrial areas, schools and lands for public. The said
plan shows the 40 plots retained by the Trust as residential
area.
8.7. On 19.1.1982, the concerned authority issued
notification calling for objections before approval. The
respondent Corporation enquired as to the effect of DDP
basing on the earlier lay out in L.P.No.1/75 by Director of
Town and Country Planning.
8.8. On 30.8.1982, the respondent Corporation was
informed by Deputy Director of town and Country Planning
that plan in L.P.No.1/75 may be treated as cancelled and
12/80 would alone prevail and be valid. Since in plan in
12/80 has not effected any change in the plan approval by
Tallakulam Town Panchayat in respect of properties of Trust,
the Trust had not raised any objections.
8.9. At this stage, the respondent Trust proposed to
put up constructions in Plot No.342 and the same was
approved as per order in K3/PR 533/82. After that the Trust
applied for permission to put up construction in Plot
Nos.276 and 369. But the same was rejected on the ground
that the area was reserved for construction of a school and
permission cannot be granted for putting up constructions
for individual use.
Therefore, the Trust filed Writ Petition No.1565 of 1987 to
quash the rejection and for direction to grant approval.
8.10. On 21.11.1991, Writ Petition No.1565 of 1987 was
allowed, rejection order was quashed and restored the
application. The Court further directed the Corporation to
pass orders within three months. The said order made it
clear that the application can be rejected only if the
detailed development plan in the said area comes under the
“Reserved for Public Purpose”. On 23.10.1992, the Director
of Town Planning agreed to keep the 2 plots 276 and 369 as
Residential plots as per judgment of High Court in
W.P.No.1565 of 1987. On 15.6.1993, the Trust made a
representation highlighting the layout in P.R.No.21/72 and
cancellation of Plan No.1/75 and prayed for restoration of
status of residential area for the 40 plots.
8.11. In pursuance of such representation on 23.9.1994,
G.O.Ms.No.244 was passed de-reserving the 40 plots subject
to condition that the trustees requested to hand over the
roads in the layout area to the Municipal Corporation.
Subsequent to that on 18.10.1994, the Trust wrote a letter
to the third respondent stating that all the roads in the
approved plan were gifted to panchayat under Gift deed
11.5.1972. On 24.2.1995, another gift deed executed and
registered in Document No.532/1995 in favour of the third
respondent. On 27.5.1995,the second respondent approved the
plan in respect of 40 plots in DDP No.994/95. On 22.4.1996,
the second respondent approved the same, the present writ
petitions were filed against the said G.O. and the D.D.P.
Approval order. There is no merit in the writ petitions and
therefore they are liable to be dismissed.
9. We have heard Mr.N.L.Rajah, learned counsel
appearing for the appellants, Mr.P.Subramaniam, learned
Government Advocate appearing for respondents 1 and 2,
Mr.R.Krishnamurthy, Senior Counsel for the fourth
respondent.
10. Upon hearing the rival contention, the points
for consideration are:
i) Whether the impugned order viz.,
G.O.Ms.No.244/23.9.1994, Municipal Administration and Water
Supply Department and consequently order arising out of the
same are illegal, vitiated by malafides in excess of the
powers of the first respondent in violation of the
principles of natural justice?
ii)Whether the notification issued under Section 27 of
the Town and Country Planning Act reserving the disputed 40
plots for public purpose under detailed development plan has
become null and void as no final order passed within three
years from the date of publication under Section 38 of the
Town and Country Planning Act.
(iii) Even assuming that the disputed land does not
come within the Detailed Development Plan, what is the
effect of the approval of P.R.No.21/1972.
11. It is true that the fourth respondent is
absolute owner of the disputed 40 plots related to plot
No.272 to 287, 324 to 333, 364 to 372, includes in the
detailed lay out comprising 76.12 acres of Thalakulam
Village. The plan approved on 19.5.1972 by order of
Thalakulam Town panchayat in P.R.21/72.
11.1 During the year 1974, Thalakulam Town Panchayat
was included in Madurai City Municipal Corporation.
Therefore, the fourth respondent again applied for re-
validation of the original plan in 21/72. So far, the said
original plan in 21/72 approved by Thalakulam Town Panchayat
on 9.5.72 was not re-validated by the third respondent with
the approval of respondents 1 and 2. It is also true that
Madurai Corporation on 9.6.88 demanded Rs.80,69,784 under
Section 250 Clause 4 of Madurai City Municipal Corporation
Act for providing amenities. The said demand notice was
quashed as per order in W.P.No.8962 of 88. Then the fourth
respondent applied for permission to put up constructions in
Plot Nos.276 and 369. The said request was rejected as the
plot Nos.276 and 369 lies within the reserved area meant for
construction of school against which the fourth respondent
filed W.P.No.1565 of 1987 to quash the rejection order and
the same was allowed with the following finding:
“There will be an order in this writ
petition quashing the refusal order made by the
Corporation of Madurai for putting up buildings
in Plot No.276 and Plot No.369 under identical
impugned orders K3/Ka.vi.838/86, both dated
16.12.1986. The application made by the
petitioner for sanction of building plan in the
above plots shall stand restored to the file of
the Madurai Corporation and shall be disposed of
within the statutory period. If no orders are
made within three months from today, on the said
application, the application will be deemed to
have been granted. It is made clear that the
Application can be rejected only in case in the
Detailed Development Plan for this area, the
above plots come under the classification
‘Reserved for public purpose’. It is needless to
state that the petitioner will be given an
opportunity to be heard in person, if he so
desires, in the matter of sanction of plan. “.
The said order was passed in pursuance of the submission
made by the fourth respondent in the affidavit filed in
W.P.No.1565 of 1987. The above said order was not with
reference to the detailed development plan No.11/92. In
fact, the direction of this Court to the Municipal
Corporation Madurai is to consider the request of
Pillayarpatti Karpaga Vinayagar Kovil Nagarathar Trust with
regard to the sanctioning of construction of building in the
said plots. The de-reservation of 40 plots which is the
subject matter of the litigation in detailed development
plan No.9/92 was not at all considered by this court. The
dispute in the said writ petition is to whether the
petitioners viz., Pillayarpatti Vinayagar Kovil Nagarathar
Trust entitled to have construction of building in the said
plot viz., Plot Nos.276, 369 or otherwise for which a
request have been made by them in the Madurai Corporation.
The said trust have not made any request to the Court for de-
reservation of 40 plots pertaining to detailed development
plan No.9/92. The request was to get a sanction for
approval of construction of building in the said plot and
nothing more than that. They have neither made any request
for sanction of plan approval or for construction of
building in the disputed 40 plots nor for de-reservation of
40 plots pertaining to detailed development plan No.9/92.
11.2. In such view of the fact, this Court while
passing direction for re-consideration of the request made
by the said Trust for approval of plan for construction in
the said two plots, not considered the point with regard to
the validity of detailed development plan No.9/92. It was
also observed that the Trust is not entitled for the relief
sought for in the said application, if the, said plots comes
under the classification reserved for public purpose. It is
no doubt true that the concerned authority ear-marked the
disputed 40 plots under the caption reserved for public
purpose.
11.3. However, the Government in G.O.(Ms).No.244 dated
23.9.1994, Municipal Administration and Water Supply
Department accorded permission for de-reservation of 2.5
acres ear-marked for in the approved lay out LP/MR/75 in
T.S.No.92,94,120 to 126, 130 to 133, 176/1 and 178 as
residential area in Madurai Corporation area subject to the
condition that the roads in the lay out area should be
handed over to the Madurai Corporation by Pillayarpatti
Vinayagar Kovil Nagarathar Trust. The Government passed the
said order in pursuance of the order in W.P.No.1565 of 1986
and W.M.P.No.3338 of 1992.
11.4. The approach of the Government in the said order
is that (a) The Government was under the mis-conception that
the order in the said writ petition recommended for de-
reservation of the plots in dispute.
(b) Whereas the writ order does not speak about de-
reservation of the plots which is under dispute.
( c) More so no such relief sought for in the writ.
11.5. In such view of the fact, we are satisfied that
the impugned G.O.Ms.No.244 dated 23.9.1994, Municipal
Administration and Water Supply Department is out of mis-
conception of the direction of this Court in W.P.No.1565 of
1987 dated 21.11.1991 and therefore the said Government
order is illegal, vitiated by malafides in excess of the
powers of the Government. Therefore, the said Government
Order is in violation of the principles of natural justice
and deserves to be quashed and accordingly this point is
answered in favour of the petitioner.
12. The learned counsel for the fourth respondent
submitted that even if the said plots are shown as reserved
for public purpose under section 27 of the Town and country
planning Act, still, under the provisions of Section 38 of
the Town and Country Planning Act, if within three years of
the date of the publication of the notice in the Tamil Nadu
Government Gazette under Section 26, 27, no declaration has
been provided under sub section 2 of section 27 is published
in respect of any land reserved, allotted or designated for
any purpose, specified in general plan or in view of
Government plan covered by such notice or such land is not
required by agreements, such land shall be deemed to be
released from such reservation allotment or designation. The
learned counsel for the petitioner would submit that the
validity of the detailed development plan No.9/92 neither
considered in the said writ petition nor considered by the
Government while passing the said Government Order. Learned
counsel for the petitioner further contended that the scope
of the writ petition was not very wide but narrow to a
limited extent whether rejection of the application of the
trust is not valid or otherwise. He further contended that
the submission of the learned counsel for the fourth
respondent has no merit as the scope of the said writ
petition was not with reference to the validity of the above
said detailed development plan.
13. The Tamil Nadu Town and Country Planning Act,
1971 is an Act to provide for planning the development and
use of rural and urban land. Under Section 2(14)
“Development Authority” means a regional planning authority
or a local planning authority or a new town development
authority constituted under the Act. “Development Plan”
under Section 2(15) means a plan for the development or re-
development or improvement of the area within the
jurisdiction of a planning authority and includes a regional
plan, master plan, detailed development plan and a new town
development plan prepared under the Act. Under Section
2(16) “Director” means the Director of Town and Country
Planning appointed under section 3.
Under Section 2(23) “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 Tami 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 the
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).”
Under Section 2(30) “planning area” means any area
declared to be a regional planning area, local planning area
or a site for a new town under this Act. Under Section
2(36) “public purpose” means any purpose which is useful to
the public or any class or section of the public. Section
11 envisages constitution of town and country planning
authorities. Section 11(1) is as follows :
11(1) As soon as may be, after declaration of
a regional planning area, a local planning area or
the designation of a site for a new town under
section 10, the Government may, in consultation
with the Director, constitute for the purpose of
the performance of the functions assigned to them,
an authority called the “regional planning
authority”, the “local planning authority”, or the
“new town development authority”, as the case may
be, for that area having jurisdiction over it:
Provided that, in case where the local
planning area consists of the area under
jurisdiction of a single local authority, the
Government may declare such local authority as the
local planning authority for that area.
Under Section 11(2), the regional planning authority
constituted under sub-section (1) shall consist of the
Chairman to be appointed by the Government, the Deputy
Director of Town and Country Planning of the region and
others. Under Section 11(3), the local planning authority
constituted under sub-section (1) other than the local
authority which has been declared as the local planning
authority under the said sub-section shall consist of the
Chairman to be appointed by the Government and others as
envisaged in other clauses. Under Section 11(4), the new
town development authority constituted under sub-section
(1) shall consist of the Chairman to be appointed by the
Government, the Chairman of the regional planning authority
or a member of the regional planning authority nominated or
the Deputy Director of Town and Country Planning of the
region concerned and others.
Functions and powers of the appropriate planning
authorities are envisaged under Section 12. Under Section
12(1), the functions of Regional Planning authority inter
alia shall be to prepare a regional plan. Similarly the
function of local planning authority shall be inter alia to
prepare a master plan or a detailed development plan and to
carry out or cause to carry out such works contemplated in
the master plan and detailed development plan.
Under Section 20(1) a detailed development plan may
propose or provide for all or any of the following matters
indicated therein. Clause (k) relates to 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.
Under Section 21, the local planning authority shall
prepare and submit a detailed development plan to the
Director and under Section 23, the Director may require the
local planning authority to prepare detailed development
plan. Under Section 25, consent of the Director to the
publication of notice of preparation of the detailed
development plan is envisaged and is quoted hereunder :-
“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.”
Section 27 is 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 of 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
Gazette, 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
Gazette.
(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.”
Under Section 29, the Director is empowered to approve
the detailed development plan or may approve with such
modifications as considered necessary or may return the plan
to the local planning authority to modify the same.
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
Gazette 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 Gazette.
Under Section 33, a detailed development plan may be
varied or revoked by a subsequent plan prepared and approved
under the Act. Section 34 is as follows:-
“34. Detailed town planning schemes prepared
under the Tamil Nadu Town Planning Act, 1920,
deemed to be detailed development plans under this
Act.- Every detailed town planning scheme
notified, submitted or sanctioned under the Tamil
Nadu Town Planning Act, 1920 (Tamil Nadu Act VII
of 1920) together with any variation made thereto
shall, for purposes of this Act, be deemed to be a
detailed development plan made under the Act and
all actions taken under the said Act in respect
thereof shall be deemed to have been taken under
the Act.”
Chapter IV relates to acquisition and disposal of land.
Under Section 36 any land required, reserved or designated
in a detailed development plan shall be deemed to be land
needed for a public purpose. Under Section 37(1),
appropriate planning authority is empowered to take steps
for acquisition of such land. Thereafter under Section
37(2), the Government may take steps as contemplated in the
Land Acquisition Act. Section 38 is to the following
effect:
“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 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.”
14. The provisions contained in the Tamil Nadu
Town and Country Planning Act, therefore, envisages that if
any private land is included in the detailed development
plan for any public purpose, ultimately such land is
required to be acquired in accordance with the provisions
contained in the said Act read with the Land Acquisition Act
and if such steps are not completed within the stipulated
period under Section 38, the land shall be deemed to be
released from such reservation, allotment or designation.
15. These provisions form the main plank of the
learned Senior Counsel appearing for Respondent No.4.
Learned Senior Counsel has also placed reliance upon a
decision of the Supreme Court reported in (2005)11 SCC 222,
wherein it was observed :
“3. … It is true that when it was shown as
a garden in the draft development plan, no
objection was raised and final notification
declaring this land as earmarked for garden was
published. It is true that a development plan can
be prepared of a land comprising of a private
person but that plan cannot be implemented till
the land belonging to the private person is
acquired by the Panning Authority. It is not that
the Planning Authority was ignorant of this fact.
It acquired some land from Plot No.437 for
developing garden but the land from Plot No.438
was not acquired for garden. Therefore, the
question is whether the Government can prepare a
development plan and deprive the owner of the land
from using that land? There is no prohibition of
including private land in a development plan but
no development can be made on that land unless
that private land is acquired for development.
The Government cannot deprive the persons from
using their private property. We quite appreciate
the interest of the residents of that area 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. In order to provide such amenities to
the residents of the area private land can be
acquired in order to effectuate their public
purpose but without acquiring the private land the
Government cannot deprive the owner of the land
from using that land for residential purpose.”
Referring to the decision of the Supreme Court in
(1991) 4 SCC 54 (BANGALORE MEDICAL TRUST v. B.S. MUDDAPPA)
and (2005)3 SCC 61 (BALAKRISHNA H: SAWANT v. SANGLI MIRAJ &
KUPWAD CITY MUNICIPAL CORPORATION), it was observed :
“3. … In the case of Bangalore Medical
Trust the open space reserved for park under the
development scheme was converted into a hospital
in favour of a private body by the Development
Authority at the instance of the Chief Minister of
the State. Therefore, this Court examined the
provisions of the Bangalore Development Authority
Act, 1976 and after considering all those
provisions, this Court held that this unilateral
act of the Bangalore Development Authority at the
instance of the Chief Minister of the State cannot
be countenanced. In that case, the area was
reserved for park and playground. Section 38-A of
the Bangalore Development Authority Act, 1976
specifically prohibited that the authority shall
not sell or otherwise dispose of any area reserved
for public parks and playgrounds and civic
amenities for any other purpose and any
disposition so made shall be null and void.
Firstly, there is no such provision under the
Maharashtra Regional and Town Planning Act, 1966
and secondly, the area which is earmarked for the
purpose of park and playground was not owned by a
private person. In the present case, though the
development plan has been prepared in the year
1966 and the area has been earmarked for the
purpose of garden but no proceeding for
acquisition of the present plot was ever initiated
by the respondent Municipal Corporation or by the
State Government. There is no prohibition for
preparing the development plan comprising of
private land but that plan cannot be implemented
unless the said private land is acquired by the
Government for development purpose. In the
present case, the area comprising in Plot No.438
belonged to the appellants and that no steps were
taken to acquire the said land by the State
Government or by the Municipal Corporation of Pune
and the Municipal Corporation had already
expressed their inability to acquire that land and
therefore, the said land has been dereserved by
the State Government. Therefore, the present case
has no semblance to that of Bangalore Medical
Trust case. The question is whether without
acquiring the land the Government can deprive a
person of his use of the land. This in our
opinion, cannot be done. It would have been
possible for the Municipal Corporation and the
Government of Maharashtra to acquire the land in
order to provide civic amenities. But the land in
question has not been acquired. We are quite
conscious of the fact that the open park and
garden are necessary for the residents of the
area. But at the same time we cannot lose sight
of the fact that a citizen is deprived of his
rights without following proper procedure of law.”
16. Keeping in view the provisions contained in
the Tamil Nadu town and Country Planning Act and ratio of
the decision of the Supreme Court, the contention raised by
the learned Senior Counsel for Respondent No.4 is to the
effect that the private land not having been acquired shall
be deemed to have been released.
17. The effect of Section 250 of the Madurai City
Municipal Corporation Act, 1971 is, however, required to be
examined. Section 250 is extracted hereunder :
“250. Owners Obligation to Make a Street When
Disposing of Lands as Building Sites(1) If the owner of any land utilizes, sells,
leases or otherwise disposes of such land or any
portion or portions of the same as sites for the
construction of buildings, he shall save in such
cases as the site or sites may abut on an existing
public or private street, layout and make a street
or streets giving access to the site or sites and
connecting with an existing public or private
street.
(2) In regard to the laying out or making of
any such street or streets, the provisions of
section 251 shall apply, subject to the conditions
that the owner shall remit a sum not exceeding 50
per cent of the estimated cost of lay-out
improvements in the land and that the owner shall
also reserve not exceeding 10 per cent of the lay-
out for the common purpose in addition to the area
provided for laying out streets. If any owner
contravenes any of the conditions specified above,
he shall be liable for prosecution(3) If in any case, the provisions, of sub-
sections (1) and (2) have not been complied with,
the Commissioner may, by notice, require the
defaulting owner to layout and make a street or
streets on such land and in such manner and within
such time as may be specified in the notice.
(4) If such street or streets are not laid
out an made in the manner and within the time
specified in the notice the Commissioner may lay-
out and make the street or streets, and the
expenses incurred shall be recovered from the
defaulting owner(5) The Commissioner may in his discretion,
issue the notice referred to in sub-section (3) or
recover the expenses referred to in sub-section
(4) to or from the owners of any buildings or
lands abutting on the street or streets concerned
but any such owner shall be entitled to recover ll
reasonable expenses incurred by him or all
expenses paid by him, as the case may be, from the
defaulting owner referred to in sub-section (3).”
18. From the materials on record, it is apparent
that the area in question became part of the Madurai
Corporation with effect from 1974. Thereafter an
application was filed for approval of the layout plan.
According to the case of the Respondent No.4, even though it
was not so required under the law, Respondent No.4 was
forced to make such application. It is not possible to
countenance such a plea that Respondent No.4 was forced to
seek for approval of the layout plan. However, it has
already been found in the earlier litigations that while the
disputed land did not form part of the Madurai Corporation,
PR.21/1972 had been approved by Tallakulam Town Panchayat by
resolution dated 18.5.1972, which was communicated on
19.5.1972. It is claimed by Respondent No.4 that in such
approved plan 40 plots in question were not shown as
reserved for any public purpose or for common purpose or for
school and since the Madurai Corporation became a successor
of Tallakulam Town Panchayat after the area became part of
Madurai Corporation, such Corporation is bound by such
approved layout plan.
19. We do not think the submission made by the
learned Senior Counsel for Respondent No.4 can be accepted
in such broad terms. To the extent Respondent No.4 had
acted upon the approved plan of Tallakulam Town Panchayat,
obviously such action cannot be found fault with because of
any subsequent development such as coming of such area
within the Madurai Corporation area. The provisions
contained in Madurai City Municipal Corporation Act would be
made applicable with effect from the date on which any area
becomes part of the Corporation and any action taken before
such date obviously cannot be challenged or re-opened.
Filing of an application before the Madurai Corporation,
which was ultimately approved and became Plan No.1 of 1975,
cannot be considered as a mere formality. To the extent any
alienation or construction had been made by virtue of
Tallakulam Town Panchayat PR 21/1972, such acts are of
course required to be protected.
20. In the present case, however, it appears that
alienation of the property has taken place only after the
area became part of the Madurai Corporation. There is no
dispute that, in such Plan No.1 of 1975, which was filed
and approved by the appropriate authorities after the area
in question became part of Madurai Corporation, the land in
question had been shown as meant for school and public
purpose or common use. Section 250(2) of the Madurai City
Municipal Corporation Act envisages that area upto 10% of
the layout is required to be reserved for common purpose in
addition to the area provided for laying out streets. If
the owner contravenes any of the conditions stated in
Section 250, he shall be liable for prosecution. Once such
lay-out is filed and approved it must be taken that such
area is required to be used for common purpose and the owner
cannot subsequently wriggle out of such a situation.
21. Possibly to over come such hurdle envisaged
under Section 250(2), learned Senior Counsel appearing for
Respondent No.4 has relied upon the principle of res
judicata by referring to the decisions of the High Court as
well as by pointing out that the suit filed had withdrawn.
22. First in point of time is O.S.No.1106 of 1986.
Such suit was filed by A. Shanmughavel and S. Raju for
themselves as well as representatives of the residents of
Karpaganagar, K. Pudur, Madurai 7. In such suit,
purportedly filed in representative capacity, the prayer was
for restraining the present Respondent No.4 from selling or
using the suit property for any purpose other than for the
purpose for which it was reserved in L.P.(MR)1/75 dated
3.9.1975 and directing the third defendant, the Special
Officer & Commissioner, Madurai Corporation, to take over
the roads and common places as per the provisions of the
Madurai City Municipal Corporation Act. Ultimately a memo
was filed on 16.8.1980 by the two plaintiffs to the effect
that they do not want to prosecute the case and the suit may
be dismissed. From Page No.85 of the typed set filed by the
petitioner it appears that such memo was recorded by the
Additional District Munsif. The rival parties now contend
that either the suit was deemed to be withdrawn or dismissed
as not pressed. The question is what is the legal effect of
such dismissal/withdrawal of the suit. The suit was
purportedly in the representative capacity under Order 1
Rule 8. There is no material produced to indicate whether
initially the permission to sue in representative capacity
had been granted and the procedure contemplated under
Order 1 Rule 8 had been followed. For the purpose of the
present case, we are prepared to assume that such procedure
has been followed. However, it is apparent that when the
suit claim was abandoned, the procedure contemplated under
Order 1 Rule 8(4) has not been followed. Order 1 Rule 8(4)
is to the following effect :
“(4) No part of the claim in any such suit
shall be abandoned under sub-rule (1), and no such
suit shall be withdrawn under sub-rule(3), of Rule
1 of Order XXIII, and no agreement, compromise or
satisfaction shall be recorded in any such suit
under Rule 3 of that Order, unless the Court has
given, at the plaintiff’s expense, notice to all
persons so interested in the manner specified in
sub-rule (2).”
Since at the stage of ultimate abandonment the
provisions contained in Order 1 Rule 8(4) had admittedly not
been followed, dismissal or abandonment can be held to be
binding on the two plaintiffs in the said case, but it
cannot be said to be binding on all the persons who were
sought to be represented.
23. The present round of litigations have been
filed by the welfare society. It is no doubt true that
Plaintiff No.1 in the said case is also the Secretary of the
Society. However, in the present litigations, the said
Plaintiff No.1 is in a different capacity and it cannot be
said that there is identity in two capacities. In our
opinion, therefore, the bar envisaged under Order 9 Rule 9
or Order 23 Rule 1(4) would not be applicable.
24. The next in point of time comes W.P.No.1565 of
1987 and the orders passed therein. Such writ petition was
filed by the present Respondent No.4. In the said writ
petition, the present petitioner was not initially impleaded
as a party, the prayer in such writ petition was to issue
writ of certiorarified mandamus for quashing the proceedings
dated 16.12.1986 and directing the Madurai Municipal
Corporation to grant permission to the Trust (present
Respondent No.4) to put up constructions in the land in Plot
Nos.276 and 369 in Survey No.122 Of Tallakulam Village,
forming part of Layout Plan In P.R.No.21/72 dated 19.5.1982,
approved by Talakulam Town Panchayat.
25. In that writ petition, reliance was placed
upon D.D.P.(MR)No.12/80. The contention was to the effect
that in view of P.R.No.21/72 of Tallakulam Panchayat and the
subsequent D.D.P.(MR)No.12/80, plots in question could be
developed for the purpose of construction. The further
contention was that the Plan No.1/75 was not binding or
valid. In the said writ petition, a petition was filed on
behalf of the present petitioner represented by Shanmugavel,
who had become the Secretary of the Karpaga Nagar Welfare
Association and by S. Raju, to get themselves impleaded as
parties to the writ petition and it appears that they were
so impleaded. After noticing the contentions, the learned
single Judge disposed of the matter by observing as follows:
“3. The lethargic manner in which the matter
is being dragged on for years together without the
citizens being made aware what is happening, and
whether a building could be put up in a particular
area or not, and whether the Master Plan already
prepared bearing No.12/80 can be acted upon or
not, presents a very dismal picture. In all such
matters, expeditious action is absolutely
necessary. There is scarcity of building areas in
Cities and Towns and in the peripheral areas.
There is overcrowding which does not behave well.
The Town and Country Planning authorities should,
therefore, exercise due diligence and expedite
matters for preparation of Master Plans, Detailed
Development Plans, etc., so that planned
development can take without any hindrance. In
this view, there will be an Order in this writ
petition quashing the refusal order made by the
Corporation of Madurai for putting up buildings in
Plot No.276 and Plot No.369 under identical
impugned orders K3/Ka.vi.838/86, both dated 16-12-
1986. The application made by the petitioner for
sanction of building plan in the above plots shall
stand restored to the file of the Madurai
Corporation and shall be disposed of within the
statutory period. If no orders are made within
three months from today, on the said application,
the application will be deemed to have been
granted. It is made clear that the Application
can be rejected only in case in the Detailed
Development Plan for this area, the above plots
come under the classification ‘Reserved for Pubic
Purpose’. It is needless to state that the
petitioner will be given an opportunity to be
heard in person, if he so desires, in the matter
of sanction of plan.”
26. Subsequently an application has been filed
numbered as W.M.P.No.3338 of 1992 for extension of time to
take appropriate decision in terms of the direction of the
High Court, but, such application, was rejected. The
Madurai Corporation at that stage took steps for filing
appeal, which was barred by limitation. The petition for
condonation of delay numbered as CMP.No.5044 of 1992 in
WA.SR.No.32558 of 1992 was dismissed by the Division Bench
by order dated 30.4.1992. The net result, therefore, was
that the order of the learned single Judge became final.
27. Since no specific order was passed within
three months as specifically directed in the order of the
learned single Judge dated 21.11.1991 in W.P.No.1565 of
1987, it must be taken that permission was granted to
Respondent No.4 Trust to put up construction in Plot
Nos.276 and 369.
28. It is no doubt true that in the said order it
was observed that application for grant of permission for
construction of building can be rejected only in case in
the Detailed Development Plan for this area, the two plots
came under the classification “reserved for public purpose”.
In such view of the matter, neither the present petitioners
nor the respondent Madurai Corporation can claim that two
plots in question can still be said to be held as part of
the public purpose or for common use and willy-nilly those
two plots must be excluded from the purview of the present
consideration. However, it cannot be said that the said
order of the learned single Judge, which had not
specifically decided any of the question raised but had
merely given a direction to Madurai Corporation to consider
the application for grant of planning permission, operates
as res judicata.
29. The next in point of time comes W.P.No.8692 of
1998. Such writ petition was filed by the present
Respondent No.4 initially impleading only Madurai
Corporation, but subsequently the present writ petitioner
got impleaded. The said writ petition was against the
notice issued by the Madurai Corporation calling upon the
present Respondent No.4 to pay 50% of the sum of
Rs.80,69,768/-, being the total cost for laying roads in the
area. The only question raised therein was as to whether
the roads shown in the layout plan had been handed over to
Tallakulam Town Panchayat. Learned single Judge ultimately
came to the conclusion that the roads had been laid and had
been handed over to Tallakulam Town Panchayat for the
purpose of maintenance and, therefore, the roads had vested
with the Panchayat and thereafter vested with Madurai
Corporation, consequent on the inclusion of Tallakulam area
in Madurai City Municipal Corporation limits. In view of
such conclusion, the learned single Judge observed that
Madurai Corporation had no jurisdiction to invoke the
provisions contained in Section 250 of the Madurai City
Municipal Corporation Act.
30. The question as to whether some lands had been
kept apart for common use was not in issue in the said writ
petition. The decision in the writ petition had been, of
course, upheld by a Division Bench of this Court in
W.A.No.412 of 1995 dated 4.9.1997. However, since the
question arising from the scope of Section 250 of the
Madurai City Municipal Corporation Act, relating to
earmarking of certain area as for common purpose, was
neither directly in issue nor it was specifically decided,
we are unable to accept the contention of Respondent No.4
that the said decision also operates as res judicata.
31. Keeping in view the scheme of the Tamil Nadu
Town and Country Planning Act, it is obvious that if any
private land is to be included in the Development Plan as
contemplated in the Tamil Nadu Town and Country Planning
Act, steps are required to be taken as contemplated in
Section 37 or 38. However, this conclusion cannot come to
the rescue of Respondent No.4. It cannot be contended that
Section 250 of the Madurai City Municipal Corporation Act is
either impliedly or expressly repealed by the Tamil Nadu
Town and Country Planning Act, 1971. In our considered
opinion, the provisions contained in both the Acts are to be
read together and not in derogation to each other. Both the
Acts operate on different fields. Requirement under Section
250 regarding reserving certain land as common for the
purpose of sanction of a layout plan stands on its own. The
aim and object of the Tamil Nadu Town and Country Planning
Act is on a different sphere. Section 250 of the Madurai
City Municipal Corporation Act is a specific provision
relating to a particular contingency and required to be
given effect to. For obtain approval of any lay-out, the
owner is required to earmark certain area as for common use
as envisaged under Section 250(2). Only upon such basis,
the plan would be approved by the appropriate authority and
in such an event such land is dedicated for the same use.
The purpose of Tamil Nadu Town and Country Planning Act is
different. It is for the purpose of land development and if
the authorities come to the conclusion that any particular
area or land is required to be earmarked for the purposes
envisaged in the Tamil Nadu Town and Country Planning Act,
they are required to acquire such land in accordance with
the provisions contained in the Land Acquisition Act read
with Section 37 of the Tamil Nadu Town and Country Planning
Act. However, Section 250 of the Madurai City Municipal
Corporation Act does not envisage any such procedure. While
obtaining sanction of a layout plan by reserving certain
area as common use, it can be said that the owner gives up
such promise to the person interest and once such promise
fortifies in an approved layout plan, obviously the person
cannot be permitted to take a different stand. It is
therefore immaterial as to whether the proceedings as
contemplated in the Tamil Nadu Town and Country Planning Act
are completed or not inasmuch as the land, which had been
dedicated for the common use, after acceptance of such plan
by the appropriate authorities would continue to be
dedicated for the common use.
32. In the above view of the matter, we allow the
writ petitions and direct that the plots covered in
L.P./MRI/75 cannot be used for any purpose other than the
public purpose mentioned in such L.P./MRI/75. However, this
direction would not be applicable to two plots, namely, Plot
Nos.276 and 369, which were the subject matter of
W.P.No.1565 of 1987. No costs.
ga/dpk
[PRV/10433]