High Court Madras High Court

Karpaga Nagar Nala Urimai Sangam vs Municipal Administration & Water … on 27 April, 2007

Madras High Court
Karpaga Nagar Nala Urimai Sangam vs Municipal Administration & Water … on 27 April, 2007
       

  

  

 
 
              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]