IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 07/06/2002
CORAM :
THE HONOURABLE MR.JUSTICE V.S.SIRPURKAR
Writ Petition No.359 OF 1996 AND Writ Petition No. 360 OF 1996
M/s.Aruppukkottai Nadars
Uravinmurai Podhu Abiviruthi
Trust, rep.by its President
Mr.M.Sudhahar. .. Petitioner in both W.Ps.
-Vs-
1.The Commissioner
Aruppukkottai Municipality
Aruppukkottai.
2.The Director of Town and
Country Planning
No.807, Anna Salai,
Madras-2. .. Respondents in both W.Ps.
Petitions under Article 226 of the Constitution of India praying
for the issue of a writ of Certiorarified Mandamus as stated therein.
For Petitioner : Mr.S.S.Sundar
For Respondents : No appearance – for R1
Mrs.T.Kokilavani – for R2
Spl.Govt.Pleader
* * * * *
: O R D E R
This judgment shall dispose of two writ petitions namely
W.P.No.359 of 1996 and W.P.No.360 of 1996. The first writ petition
is for a writ of certiorarified mandamus calling upon the quashing
of the order passed by the first respondent, Commissioner,
Aruppukkottai Municipality dated 7.11.1995. By that order, the
permission to construct over T.S.Nos.28,29,42 and 43 was rejected on
the ground that those lands were part of the scheme and in the
scheme a road was said to be passing from those lands.
2. The second Writ Petition No. 360 of 1996 is well connected
with the first writ petition inasmuch as the relief asked for is
quashing of the order Vide Na.Ka.No.46451/94, DP 1(1) dated
16.8.1995, passed by the second respondent, Director of Town and
Country Planning. By that order, concerned officer had refused to
delete these above mentioned lands from the scheme. It therefore
follows that the petitioner, who wanted to develop the lands and
construct something over them, required the permission of
Aruppukkottai Municipality. However, since these lands were the
part of the scheme under the Tamil Nadu Town and Country Planning
Act, 1971, the Municipality refused the permission to construct and,
therefore, the petitioner approached the Town Planning authorities
to get these lands deleted from the scheme, so that the hurdle of
the scheme was removed from his way for making constructions on
those lands. Following factual background will help us understand
the controversy.
3. It is an admitted position that the petitioner holds pattas
in respect of the lands in question. Though in 1961 the
Municipality opposed to grant pattas, the petitioner was granted the
pattas in the year 1962 and those pattas were granted by the
settlement officer under Act 26 of 1948. Thereafter, in 1971, the
Director, Town and Country Planning sanctioned a plan by way of a
scheme, wherein T.S.Nos.28,29,4 2 and 43 were shown to be required
for public roads. However, it is an admitted position that in
pursuance of the scheme this land was never acquired either by the
Municipality or by the Government. The petitioner applied for
permission to construct, which application was granted. The
petitioner also received a letter dated 15.11.1994 to pay a sum of
Rs.2,500/- towards plan variation fee. However, subsequently this
permission came to be revoked by order dated 16.8.1995 Vide
Na.Ka.No.46451/94, DP 1(1). The petitioner, therefore, again filed
an application for permission to put up construction. On the other
side, the petitioner also applied for deletion of the lands from the
scheme. So, while the application before the Municipal Council was
pending, the second respondent i.e., the Director, Town and Country
Planning rejected the application for deletion of these lands from
the scheme. Consequently, the application for construction made to
the Municipality was also rejected vide order dated 7.11.1995. That
was rejected on two grounds, firstly that the constructions were not
in keeping with the building rules as the petitioner had not left
open space as per Rule 14(1) and secondly that the lands were
included in the scheme. It is against all this that the present two
writ petitions came to be filed as stated above.
4. The learned counsel for the petitioner Mr.Sundar has
restricted his arguments mainly to Sections 37 and 38 of the Tamil
Nadu Town and Country Planning Act (hereinafter referred to as ‘the
Act’). The learned counsel points out that there can be no doubt
that this was a privately owned land. He points out that the land
is well covered by patta, which stands in the name of the
petitioner. He then points out that for implementing the scheme, it
was necessary for the authorities to acquire the land under Section
37. He points out that nothing of the sort was done under Section
37 either by the Municipality or by the Government after the
publication of the development plan. He then invites the attention
to Section 38, which is to the following effect:
“Section 38:- If within three years from the date of the publication
of the notice of Section 27 in the Tamil Nadu Government Gazette –
(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 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.”
5. Very heavily relying on Section 38, the learned Counsel
pointed out that since there was no declaration made in respect of
any land covered by a notice under section 26 or 27, within three
years from the date of such notice as contemplated under Section
37(2) and since the land was also not acquired by private agreement,
the land is deemed to be released from the reservation, allotment or
designation. The learned counsel points out that notices under
Sections 26 and 27 were published somewhere in the year 1971. That
position is not disputed by the Government Pleader. He points out
that since no effective steps were taken under Section 37 and since
the land just remained as it was, the necessary consequences of
Section 38 must follow. Now, there can be no doubt that after the
publication of the notices under Section 26 and 27, there arises a
power to purchase or acquire the land specified in the development
plan in favour of the planning authority. In this case, the said
planning authority would be the Municipality. Section 37(2)
specifically provides that where the land concerned is required as
per the development plan for the public purpose, an application
shall be made suggesting therein that the land is required for
public purpose. On that, a declaration in the nature of Section 6
of the Land Acquisition Act is published and the time limit for
making such declaration is three years. It is also clear from
Section 37(3) that after the publication of the declaration, the
acquisition proceedings are taken by the Collector and the land is
finally acquired. Section 38 is extremely clear that where no
declaration under Section 37 is made in respect of any land reserved
for the development plan for three years or where the land is not
acquired by the private agreement, the land is deemed to be
released. Therefore, the learned counsel is right in his contention
that the land is deemed to have released and to that extent the
order refusing to delete the lands from the scheme, passed by the
second respondent is clearly incorrect.
6. If this is so, then that objection by the Municipal Council
for refusing to grant the permission to construct would obviously
not stand and the order refusing the permission to that extent is
clearly incorrect. When we see the order passed by the Municipality
refusing permission, it is seen that it is passed on two grounds and
the second ground is that the land is a part of the scheme.
However, there is one more difficulty in the way of the petitioner
by way of the first ground, wherein the Municipal Council says that
the plan is not in keeping with the rules. Ordinarily, there would
be no question of interfering with the Municipal Council’s order
insofar as the first ground is concerned. That will be upto the
Municipality to consider and it will be up to the petitioner to
remedy the defects shown by way of the first ground. Till such time
as the petitioner is not able to remedy the defects shown in the
first ground, there would be no question of issuing the permission.
Therefore, though the order is incorrect insofar as the second
ground is concerned, that does not solve the difficulty of the
petitioner. However, the petitioner may still approach the
Municipal Council with a fresh application for permission, if
necessary, by remedying the defects. However, it is obvious that
the lands stand released from the scheme by the operation of Section
38.
7. The learned Government Pleader says that if the land is
permitted to be utilised by raising constructions thereupon, the
public will suffer immensely. In fact, the administrator of the
Municipal Council was also present during the debate before this
Court and he also reiterated that the Municipal Council has passed a
resolution to acquire this land. That may be so. The Municipality
cannot be allowed to wait for years together to acquire the land if
they really require the land for public purpose. The Government
Pleader says that there are plans to acquire this land and the
Government would be taking steps to acquire the land under Land
Acquisition Act. They are at liberty to do so, but that too cannot
wait indefinitely for years together as has happened in this case.
8. Therefore, the writ petitions are disposed of by declaring
that the order passed by the Municipal Council rejecting the
permission is incorrect insofar as the second ground is concerned.
As also, the order passed by the second respondent, Director, Town
and Country Planning is incorrect deleting the scheme. With the
result, the lands automatically stand released from the scheme and
the petitioner would be in a position to apply afresh for the
permission by remedying the defects shown in the first order of the
Municipality. If the application for permission to construct is
made by the petitioner, such application shall be dealt with within
six months thereof as per the Rules. The Government as well as the
Municipal Council are also at liberty to start the proceedings for
acquisition on these lands. While considering the application for
permission to construct, the Municipal Council shall take into
account any such acquisition proceedings if then pending.
9. With these observations, the writ petitions are disposed of.
07.06.2002
kst.
To: 1.The Commissioner, Aruppukkottai Municipality Aruppukkottai.
2.The Director of Town and Country Planning No.807, Anna Salai,
Madras-2.
V.S.SIRPURKAR, J.
==================
W.P.Nos.359 and 360 of
1996
7.6.2002