{"id":216035,"date":"2007-04-27T00:00:00","date_gmt":"2007-04-26T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/karpaga-nagar-nala-urimai-sangam-vs-municipal-administration-water-on-27-april-2007"},"modified":"2018-04-10T13:43:30","modified_gmt":"2018-04-10T08:13:30","slug":"karpaga-nagar-nala-urimai-sangam-vs-municipal-administration-water-on-27-april-2007","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/karpaga-nagar-nala-urimai-sangam-vs-municipal-administration-water-on-27-april-2007","title":{"rendered":"Karpaga Nagar Nala Urimai Sangam vs Municipal Administration & Water … on 27 April, 2007"},"content":{"rendered":"
Madras High Court<\/div>\n
Karpaga Nagar Nala Urimai Sangam vs Municipal Administration & Water … on 27 April, 2007<\/div>\n
       \n\n  \n\n  \n\n \n \n              IN THE HIGH COURT OF JUDICATURE AT MADRAS\n\n                     DATED:  27\/04\/2007\n\n                            CORAM\n\n             THE HONOURABLE MR.JUSTICE P.K.MISRA\n                             and\n        THE HONOURABLE MR.JUSTICE J.A.K.SAMPATHKUMAR\n                              \n                    W.P. No.5051 of 1996\n                             and \n                    W.P. No.19015 of 1996\n\n\n\nKarpaga Nagar Nala Urimai Sangam\nrepresented by its Secretary Shanmugavel          \t\t..Petitioner in \n\t\t\t\t\t\t\t\t  both the W.Ps\n\n\n       Vs\n\n\n1. Municipal Administration & Water Supply Dept.\n   Rep.by its Secretary\n   Chennai 2.\n\n2. The Director of Town and Country Planning\n   Madras 2.\n\n3. The Commissioner of Corporation\n   Madurai 625 002.\n\n4. Pillayar Patti Karpaga Vinayagar Koil Nagarathar Trust\n   rep.by its Trustee\n   N.K. Lakshmanan\n   Pillayarpatti Pasumpon\n   Muthuramalingam District              \t\t\t..Respondents in\n                                            \t\t\t  both the W.Ps\n\n\n\n        Prayer:    Petitions  under  Article  226   of   the\nConstitution of India praying for the issuance of a writ  of\ncertiorarified mandamus calling for the records of the first\nrespondent  bearing G.O.Ms.No.244 dated 23.9.94  culminating\nin ordr No.K2\/85710\/1994 dated 22.4.1996 and sanctioned plan\nMa.Va\/Tha.V.E.994\/1995,  quash  the  same  and  direct   the\nrespondents to forbear from dereserving the plots  comprised\nin  R.S.No.120 to 126, 130 to 133, 176\/1 to 178\/2  measuring\n2.5  acres in Karpaga Nagar, K.Pudur, Madurai or permit them\nto  be  used for any purpose other than the public  purposes\nmentioned in L.P.\/MRI\/75.\n\n\n\n      For Petitioners : Mr.N.L.Rajah\n\n      For R1 and R2   : Mr.P.Subrmaniam\n\n      For R3          : Mr.P.Srinivas\n\n      For R4          : Mr.R.Krishnamurthy, Senior Counsel for Mrs.A.L. Gandhimathi\n\n\n\n\n                         COMMON ORDER\n\n\n\nJ.A.K.SAMPATHKUMAR, J.\n<\/pre>\n
           These  writ  petitions are filed challenging  the<\/p>\n
notification  issued  by the Government  on  23.9.1994  vide<\/p>\n
G.O.Ms.No.244  of 1994 (Municipal Administration  and  Water<\/p>\n
Supply  Department) and also challenging  the  consequential<\/p>\n
acts  pursuant to issuance of the said G.O. and for  praying<\/p>\n
to quash the same.\n<\/p>\n<\/p>\n
           2.  The  common  plea in both the  writs  are  as<\/p>\n
follows:\n<\/p>\n<\/p>\n
        The  land  presently  known  as  Karpaga  Nagar  was<\/p>\n
initially  owned by the fourth respondent and extent  of  73<\/p>\n
acres and 60 cents of land in R.S.No.120 to 126, 130 to 133,<\/p>\n
176\/1  and 178\/2 was owned by the fourth respondent  in  the<\/p>\n
erstwhile Tallakulam Town Panchayat, Madurai District.   The<\/p>\n
fourth  respondent formed a layout with an object of selling<\/p>\n
their lands in survey Numbers referred above as house sites.<\/p>\n
The  entire extent was divided into 832 plots.  The Director<\/p>\n
of  Town Planning, Madras gave approval for the said  layout<\/p>\n
vide LPMR 1\/75.   These lands were under the jurisdiction of<\/p>\n
Tallakulam Town Panchayat before they were merged  with  the<\/p>\n
Madurai Corporation in dated 30.1.1994.\n<\/p>\n<\/p>\n
           3.  The  approval  was  granted  subject  to  the<\/p>\n
condition  that  an  extent  of  2.52  acres  comprised   in<\/p>\n
R.S.No.120  to 126, 130 to 133, 176\/1 and 178\/2   should  be<\/p>\n
kept reserved for public  purposes.\n<\/p>\n<\/p>\n
          4. The third respondent had not provided any basic<\/p>\n
amenities  like  roads etc.   At the  same  time  the  third<\/p>\n
respondent  has  been collecting road  cost  from  the  plot<\/p>\n
owners   as   and   when  they  apply  for  permission   for<\/p>\n
construction  on  the sites.   In the meantime,  the  fourth<\/p>\n
respondent some time in 1986 tried to sell to third  parties<\/p>\n
the  forty  plots reserved for public purposes like  school,<\/p>\n
temple,  market,  children’s  park  etc.,  as  per  lay  out<\/p>\n
approval.\n<\/p>\n<\/p>\n
           5.  In this regard, the then Commissioner of  the<\/p>\n
third   respondent  attended  to  the  complaints   of   the<\/p>\n
petitioner  and  effectively stopped  such  efforts  by  the<\/p>\n
Fourth  respondent by giving a notice to the  trust  not  to<\/p>\n
sell  the plots reserved for public purposes.  However,  the<\/p>\n
fourth respondent proposed to put up a building in plot Nos.<\/p>\n
276  and 369 and applied for approval of the building  plan.<\/p>\n
Plot  Nos.  276 and 369 formed part of the 2.52 acres  which<\/p>\n
was   reserved  for  public  purposes    The  approval   for<\/p>\n
construction was granted by the third respondent  under  the<\/p>\n
mistaken   impression  that  the  said  plots  were   in   a<\/p>\n
residential  area.   On realising the mistake  subsequently,<\/p>\n
the   third   respondent,  refused  to  renew  licence   for<\/p>\n
construction.\n<\/p>\n<\/p>\n
           6.  However, the fourth respondent filed  a  writ<\/p>\n
petition  i.e  W.P.No.1565 of 1987 praying  for  a  writ  of<\/p>\n
certiorarified mandamus to quash the order dated  16.12.1986<\/p>\n
refusing  permission and to direct the respondent  to  grant<\/p>\n
permission  for construction.   The said writ  petition  was<\/p>\n
allowed with the following directions:\n<\/p>\n<\/p>\n
      “The  application  made by the  petitioner  for
\n      sanction  of  building plan in the above  plots
\n      shall  stand  restored  to  the  file  of   the
\n      Madurai  Corporation and shall be disposed  off
\n      within  the  statutory period.   If  no  orders
\n      are  made  within three months form  today,  on
\n      the  said application, the application will  be
\n      deemed  to  have  been granted.    It  is  made
\n      clear  that  the  application can  be  rejected
\n      only  in case in the detailed development plant
\n      for  this  area the above plots come under  the
\n      identification,    “Reserved     for     Public
\n      purposes”.   It is needless to state  that  the
\n      petitioner will be given an opportunity  to  be
\n      heard  in  person  if  he so  desires,  in  the
\n      matter of sanction of plan”.\n<\/p><\/blockquote>\n
This  order was only with reference to two plots i.e.Nos.276<\/p>\n
and 379.\n<\/p>\n<\/p>\n
           7. While matters stood thus, the petitioners were<\/p>\n
shocked to find sometime in the second week of February that<\/p>\n
the  fourth respondent was trying to take steps to sell  the<\/p>\n
plots earmarked for public purposes to third parties and the<\/p>\n
petitioner instituted enquiries at the office of  the  third<\/p>\n
respondent.   They  were given a copy of  the  G.O.Ms.No.244<\/p>\n
dated 23.9.1984 wherein the first respondent had stated that<\/p>\n
“In  view  of  the  order  of  the  High  Court  Madras   in<\/p>\n
W.P.No.1565  of 1987 and W.M.P. No.338 of 1992 the  Director<\/p>\n
of Town and Country Planning has recommended the case for de-<\/p>\n
reservation  subject to the conditions that the trustee  may<\/p>\n
be  requested to hand over the roads in the layout  area  to<\/p>\n
the Municipal Corporation.”\n<\/p>\n
In  and  by the said G.O., the first respondent has  granted<\/p>\n
permission  for  de-reservation  of  2.52  acres   of   land<\/p>\n
earmarked  for school in the approved lay out L.P.M.R.  1\/75<\/p>\n
in   R.S.No.92\/94  etc.,  as  residential  area  in  Madurai<\/p>\n
Corporation  area.   The  said  order  dated  23.9.1994   is<\/p>\n
illegal,  vitiated by malafides, in excess of the powers  of<\/p>\n
the  first  respondent, in violation of  the  principles  of<\/p>\n
natural justice and deserve to be quashed.<\/p>\n
          8. The fourth respondent resisted this petition on<\/p>\n
the following points:\n<\/p>\n<\/p>\n
      8.1.The respondent trust formed in or about 1924, look<\/p>\n
after  religious  and  secular activities  of  Pilliyarpatti<\/p>\n
Kovil for welfare of Nagarathar Community.<\/p>\n
      8.2.During  the  year 1930, Trust acquired  properties<\/p>\n
including  lands  in S.No.92, 94, 120 to 126,  130  to  133,<\/p>\n
176\/1, 178  Tallakulam Village.  The said lands were divided<\/p>\n
into plots for sale in order to augment income for Trust and<\/p>\n
named   as  “Karpaga  Nagar”.   A  detailed  lay  out   plan<\/p>\n
comprising  76.12 Acres was prepared and the  same  was  got<\/p>\n
approved on 19.5.1972 in P.R.No.21\/72.\n<\/p>\n<\/p>\n
      8.3. As per the approved lay out, plots were sold  and<\/p>\n
40  plots were retained by Trust (Plot No.272 to 281, 324 to<\/p>\n
343,  364  to  373), roads as per the plan were  formed  and<\/p>\n
gifted  to panchayat  During the year 1974, Tallakulam  Town<\/p>\n
Panchayat  included  in Madurai City Municipal  Corporation.<\/p>\n
Laws  applicable to Corporation were extended from  date  of<\/p>\n
extension  of limits under Section 3(7) of Act XV  of  1971.<\/p>\n
Saving  clause provides Corporation is bound by all acts  of<\/p>\n
Panchayat   before  extension.   Therefore,  the   plan   in<\/p>\n
P.R.21\/72 approved by the Town Panchayat will hold good.<\/p>\n
      8.4.  However, since Madurai Corporation  insisted  to<\/p>\n
revalidate the plan, Trust again applied for revalidation of<\/p>\n
the Original Plan in 21\/72.  Plan No.1\/75 showed 40 plots as<\/p>\n
reserved  for School.  However since the Trust  had  already<\/p>\n
obtained plan approval from the Town Panchayat, they had not<\/p>\n
paid the development Charges to the Corporation.<\/p>\n
      8.5.  But  on 18.4.1979, Corporation demanded  Rs.7.59<\/p>\n
Lakhs for laying of Roads for approval of layout.<\/p>\n
      8.6.  During  1979-80,  Local  Planning  Authority  of<\/p>\n
Madurai  prepared  a  detailed  Draft  Plan  (DDP)for  Pudur<\/p>\n
Neighbourhood which also includes the lands of the Trust DTP<\/p>\n
(MR)12\/80.    It   also  provides  for  residential   areas,<\/p>\n
industrial  areas, schools and lands for public.   The  said<\/p>\n
plan shows the 40 plots retained by the Trust as residential<\/p>\n
area.\n<\/p>\n<\/p>\n
      8.7.  On  19.1.1982,  the concerned  authority  issued<\/p>\n
notification  calling for objections before  approval.   The<\/p>\n
respondent  Corporation enquired as to  the  effect  of  DDP<\/p>\n
basing on the earlier lay out in L.P.No.1\/75 by Director  of<\/p>\n
Town and Country Planning.\n<\/p>\n<\/p>\n
      8.8.  On  30.8.1982,  the respondent  Corporation  was<\/p>\n
informed  by  Deputy Director of town and  Country  Planning<\/p>\n
that  plan  in  L.P.No.1\/75 may be treated as cancelled  and<\/p>\n
12\/80  would alone prevail and be valid.  Since in  plan  in<\/p>\n
12\/80  has  not effected any change in the plan approval  by<\/p>\n
Tallakulam Town Panchayat in respect of properties of Trust,<\/p>\n
the Trust had not raised any objections.\n<\/p>\n<\/p>\n
      8.9.  At this stage, the respondent Trust proposed  to<\/p>\n
put  up  constructions  in  Plot No.342  and  the  same  was<\/p>\n
approved as per order in K3\/PR 533\/82.  After that the Trust<\/p>\n
applied  for  permission  to put  up  construction  in  Plot<\/p>\n
Nos.276  and 369.  But the same was rejected on  the  ground<\/p>\n
that the area was reserved for construction of a school  and<\/p>\n
permission  cannot be granted for putting  up  constructions<\/p>\n
for individual use.\n<\/p>\n
\nTherefore, the Trust filed Writ Petition No.1565 of 1987  to<\/p>\n
quash the rejection and for direction to grant approval.<\/p>\n
      8.10. On 21.11.1991, Writ Petition No.1565 of 1987 was<\/p>\n
allowed,  rejection  order  was  quashed  and  restored  the<\/p>\n
application.  The Court further directed the Corporation  to<\/p>\n
pass  orders  within three months.  The said order  made  it<\/p>\n
clear  that  the  application can be rejected  only  if  the<\/p>\n
detailed  development plan in the said area comes under  the<\/p>\n
“Reserved for Public Purpose”.  On 23.10.1992, the  Director<\/p>\n
of  Town Planning agreed to keep the 2 plots 276 and 369  as<\/p>\n
Residential  plots  as  per  judgment  of  High   Court   in<\/p>\n
W.P.No.1565  of  1987.  On  15.6.1993,  the  Trust  made   a<\/p>\n
representation  highlighting the layout in P.R.No.21\/72  and<\/p>\n
cancellation  of Plan No.1\/75 and prayed for restoration  of<\/p>\n
status of residential area for the 40 plots.<\/p>\n
     8.11. In pursuance of such representation on 23.9.1994,<\/p>\n
G.O.Ms.No.244  was passed de-reserving the 40 plots  subject<\/p>\n
to  condition that the trustees  requested to hand over  the<\/p>\n
roads  in  the  layout  area to the  Municipal  Corporation.<\/p>\n
Subsequent to that on 18.10.1994, the Trust wrote  a  letter<\/p>\n
to  the  third respondent stating that all the roads in  the<\/p>\n
approved  plan  were  gifted to panchayat  under  Gift  deed<\/p>\n
11.5.1972.   On  24.2.1995, another gift deed  executed  and<\/p>\n
registered  in Document No.532\/1995 in favour of  the  third<\/p>\n
respondent.  On 27.5.1995,the second respondent approved the<\/p>\n
plan in respect of 40 plots in DDP No.994\/95.  On 22.4.1996,<\/p>\n
the  second  respondent approved the same, the present  writ<\/p>\n
petitions  were filed against the said G.O. and  the  D.D.P.<\/p>\n
Approval order.  There is no merit in the writ petitions and<\/p>\n
therefore they are liable to be dismissed.<\/p>\n
           9.  We  have heard Mr.N.L.Rajah, learned  counsel<\/p>\n
appearing  for  the  appellants,  Mr.P.Subramaniam,  learned<\/p>\n
Government  Advocate  appearing for  respondents  1  and  2,<\/p>\n
Mr.R.Krishnamurthy,   Senior   Counsel   for   the    fourth<\/p>\n
respondent.\n<\/p>\n<\/p>\n
           10. Upon hearing the rival contention, the points<\/p>\n
for consideration are:\n<\/p>\n<\/p>\n
     i)     Whether     the     impugned     order     viz.,<\/p>\n
G.O.Ms.No.244\/23.9.1994, Municipal Administration and  Water<\/p>\n
Supply Department and consequently order arising out of  the<\/p>\n
same  are  illegal, vitiated by malafides in excess  of  the<\/p>\n
powers   of  the  first  respondent  in  violation  of   the<\/p>\n
principles of natural justice?\n<\/p>\n<\/p>\n
      ii)Whether the notification issued under Section 27 of<\/p>\n
the Town and Country Planning Act reserving the disputed  40<\/p>\n
plots for public purpose under detailed development plan has<\/p>\n
become  null and void as no final order passed within  three<\/p>\n
years  from the date of publication under Section 38 of  the<\/p>\n
Town and Country Planning Act.\n<\/p>\n<\/p>\n
      (iii)  Even assuming that the disputed land  does  not<\/p>\n
come  within  the  Detailed Development Plan,  what  is  the<\/p>\n
effect of the approval of P.R.No.21\/1972.<\/p>\n
           11.  It  is  true that the fourth  respondent  is<\/p>\n
absolute  owner  of the disputed 40 plots  related  to  plot<\/p>\n
No.272  to  287,  324 to 333, 364 to 372,  includes  in  the<\/p>\n
detailed  lay  out  comprising  76.12  acres  of  Thalakulam<\/p>\n
Village.   The  plan  approved  on  19.5.1972  by  order  of<\/p>\n
Thalakulam Town panchayat in P.R.21\/72.\n<\/p>\n<\/p>\n
      11.1  During the year 1974, Thalakulam Town  Panchayat<\/p>\n
was   included   in  Madurai  City  Municipal   Corporation.<\/p>\n
Therefore,  the  fourth  respondent again  applied  for  re-<\/p>\n
validation of the original plan in 21\/72.  So far, the  said<\/p>\n
original plan in 21\/72 approved by Thalakulam Town Panchayat<\/p>\n
on  9.5.72 was not re-validated by the third respondent with<\/p>\n
the  approval of respondents 1 and 2.  It is also true  that<\/p>\n
Madurai  Corporation on 9.6.88 demanded  Rs.80,69,784  under<\/p>\n
Section  250  Clause 4 of Madurai City Municipal Corporation<\/p>\n
Act  for  providing  amenities. The said demand  notice  was<\/p>\n
quashed  as per order in W.P.No.8962 of 88. Then the  fourth<\/p>\n
respondent applied for permission to put up constructions in<\/p>\n
Plot Nos.276 and 369.  The said request was rejected as  the<\/p>\n
plot Nos.276 and 369 lies within the reserved area meant for<\/p>\n
construction  of school against which the fourth  respondent<\/p>\n
filed  W.P.No.1565 of 1987 to quash the rejection order  and<\/p>\n
the same was allowed with the following finding:<\/p>\n
           “There  will  be  an  order  in  this  writ
\n     petition quashing the refusal order made  by  the
\n     Corporation  of Madurai for putting up  buildings
\n     in  Plot  No.276 and Plot No.369 under  identical
\n     impugned   orders  K3\/Ka.vi.838\/86,  both   dated
\n     16.12.1986.    The  application   made   by   the
\n     petitioner for sanction of building plan  in  the
\n     above  plots shall stand restored to the file  of
\n     the Madurai Corporation and shall be disposed  of
\n     within  the  statutory period.  If no orders  are
\n     made  within three months from today, on the said
\n     application,  the application will be  deemed  to
\n     have  been  granted.  It is made clear  that  the
\n     Application can be rejected only in case  in  the
\n     Detailed  Development Plan  for  this  area,  the
\n     above   plots   come  under  the   classification
\n     ‘Reserved for public purpose’. It is needless  to
\n     state  that  the  petitioner  will  be  given  an
\n     opportunity  to  be heard in  person,  if  he  so
\n     desires, in the matter of sanction of plan. “.\n<\/p><\/blockquote>\n
The  said  order  was passed in pursuance of the  submission<\/p>\n
made  by  the  fourth respondent in the affidavit  filed  in<\/p>\n
W.P.No.1565  of  1987.  The above said order  was  not  with<\/p>\n
reference  to  the detailed development plan  No.11\/92.   In<\/p>\n
fact,   the   direction  of  this  Court  to  the  Municipal<\/p>\n
Corporation   Madurai  is  to  consider   the   request   of<\/p>\n
Pillayarpatti Karpaga Vinayagar Kovil Nagarathar Trust  with<\/p>\n
regard to the sanctioning of construction of building in the<\/p>\n
said  plots.   The de-reservation of 40 plots which  is  the<\/p>\n
subject  matter  of  the litigation in detailed  development<\/p>\n
plan  No.9\/92 was not at all considered by this  court.  The<\/p>\n
dispute  in  the  said  writ  petition  is  to  whether  the<\/p>\n
petitioners  viz., Pillayarpatti Vinayagar Kovil  Nagarathar<\/p>\n
Trust entitled to have construction of building in the  said<\/p>\n
plot  viz.,  Plot  Nos.276, 369 or  otherwise  for  which  a<\/p>\n
request  have  been made by them in the Madurai Corporation.<\/p>\n
The said trust have not made any request to the Court for de-<\/p>\n
reservation  of 40 plots pertaining to detailed  development<\/p>\n
plan  No.9\/92.   The  request was  to  get  a  sanction  for<\/p>\n
approval  of construction of building in the said  plot  and<\/p>\n
nothing  more than that.  They have neither made any request<\/p>\n
for  sanction  of  plan  approval  or  for  construction  of<\/p>\n
building in the disputed 40 plots nor for de-reservation  of<\/p>\n
40 plots pertaining to detailed development plan No.9\/92.<\/p>\n
      11.2.  In  such  view of the fact,  this  Court  while<\/p>\n
passing  direction for re-consideration of the request  made<\/p>\n
by  the said Trust for approval of plan for construction  in<\/p>\n
the said two plots, not considered the point with regard  to<\/p>\n
the  validity of detailed development plan No.9\/92.  It  was<\/p>\n
also  observed that the Trust is not entitled for the relief<\/p>\n
sought for in the said application, if the, said plots comes<\/p>\n
under the classification reserved for public purpose.  It is<\/p>\n
no  doubt  true that the concerned authority ear-marked  the<\/p>\n
disputed  40  plots  under the caption reserved  for  public<\/p>\n
purpose.\n<\/p>\n<\/p>\n
      11.3. However, the Government in G.O.(Ms).No.244 dated<\/p>\n
23.9.1994,   Municipal  Administration  and   Water   Supply<\/p>\n
Department  accorded  permission for de-reservation  of  2.5<\/p>\n
acres  ear-marked for in the approved lay  out  LP\/MR\/75  in<\/p>\n
T.S.No.92,94,120  to  126, 130 to  133,  176\/1  and  178  as<\/p>\n
residential area in Madurai Corporation area subject to  the<\/p>\n
condition  that  the  roads in the lay out  area  should  be<\/p>\n
handed  over  to  the Madurai Corporation  by  Pillayarpatti<\/p>\n
Vinayagar Kovil Nagarathar Trust.  The Government passed the<\/p>\n
said  order in pursuance of the order in W.P.No.1565 of 1986<\/p>\n
and W.M.P.No.3338 of 1992.\n<\/p>\n<\/p>\n
      11.4. The approach of the Government in the said order<\/p>\n
is that (a) The Government was under the mis-conception that<\/p>\n
the  order  in  the said writ petition recommended  for  de-<\/p>\n
reservation of the plots in dispute.\n<\/p>\n<\/p>\n
      (b)  Whereas the writ order does not speak  about  de-<\/p>\n
reservation of the plots which is under dispute.<\/p>\n
     ( c)  More so no such relief sought for in the writ.<\/p>\n
      11.5. In such view of the fact, we are satisfied  that<\/p>\n
the   impugned  G.O.Ms.No.244  dated  23.9.1994,   Municipal<\/p>\n
Administration and Water Supply Department is  out  of  mis-<\/p>\n
conception of the direction of this Court in W.P.No.1565  of<\/p>\n
1987  dated  21.11.1991 and therefore  the  said  Government<\/p>\n
order  is  illegal, vitiated by malafides in excess  of  the<\/p>\n
powers  of  the Government.  Therefore, the said  Government<\/p>\n
Order  is in violation of the principles of natural  justice<\/p>\n
and  deserves  to be quashed and accordingly this  point  is<\/p>\n
answered in favour of the petitioner.\n<\/p>\n<\/p>\n
           12. The learned counsel for the fourth respondent<\/p>\n
submitted that even if the said plots are shown as  reserved<\/p>\n
for  public purpose under section 27 of the Town and country<\/p>\n
planning Act, still, under the provisions of Section  38  of<\/p>\n
the Town and Country Planning Act, if within three years  of<\/p>\n
the  date of the publication of the notice in the Tamil Nadu<\/p>\n
Government Gazette under Section 26, 27, no declaration  has<\/p>\n
been provided under sub section 2 of section 27 is published<\/p>\n
in  respect of any land reserved, allotted or designated for<\/p>\n
any  purpose,  specified  in general  plan  or  in  view  of<\/p>\n
Government plan covered by such notice or such land  is  not<\/p>\n
required  by  agreements, such land shall be  deemed  to  be<\/p>\n
released from such reservation allotment or designation. The<\/p>\n
learned  counsel  for the petitioner would submit  that  the<\/p>\n
validity  of  the detailed development plan No.9\/92  neither<\/p>\n
considered in the said writ petition nor considered  by  the<\/p>\n
Government while passing the said Government Order.  Learned<\/p>\n
counsel for the petitioner further contended that the  scope<\/p>\n
of  the  writ  petition was not very wide but  narrow  to  a<\/p>\n
limited extent whether rejection of the application  of  the<\/p>\n
trust is not valid or otherwise.  He further contended  that<\/p>\n
the  submission  of  the  learned  counsel  for  the  fourth<\/p>\n
respondent  has  no  merit as the scope  of  the  said  writ<\/p>\n
petition was not with reference to the validity of the above<\/p>\n
said detailed development plan.\n<\/p>\n<\/p>\n
           13. The Tamil Nadu Town and Country Planning Act,<\/p>\n
1971  is an Act to provide for planning the development  and<\/p>\n
use   of   rural  and  urban  land.   Under  Section   2(14)<\/p>\n
“Development Authority” means a regional planning  authority<\/p>\n
or  a  local  planning authority or a new  town  development<\/p>\n
authority  constituted  under the  Act.  “Development  Plan”<\/p>\n
under Section 2(15) means a plan for the development or  re-<\/p>\n
development   or   improvement  of  the  area   within   the<\/p>\n
jurisdiction of a planning authority and includes a regional<\/p>\n
plan, master plan, detailed development plan and a new  town<\/p>\n
development  plan  prepared under the  Act.   Under  Section<\/p>\n
2(16)  “Director”  means the Director of  Town  and  Country<\/p>\n
Planning appointed under section 3.\n<\/p>\n<\/p>\n
         Under Section 2(23) “Local Authority” means –<\/p>\n
\t    (i)  the  Municipal Corporation of Chennai  or  of
\n    Madurai; or<\/p>\n
          (ii)  a Municipal Council constituted  under
\n    the  Tamil Nadu District Municipalities Act,  1920
\n    (Tamil Nadu Act V of 1920); or<\/p>\n
          (iii) a Township Committee constituted under
\n    the  Tamil Nadu District Municipalities Act,  1920
\n    (Tamil  Nadu  Act  V of 1920), or  the  Tami  Nadu
\n    Panchayats  Act,  1958 (Tamil  Nadu  Act  XXXV  of
\n    1958),  or under any other law for the time  being
\n    in  force, or the Mettur Township Act, 1940 (Tamil
\n    Nadu  Act  XI of 1940), or the Courtallam Township
\n    Act,  1954  (Tamil Nadu Act XVI of 1954),  or  the
\n    Bhavanisagar  Township Act, 1954 (Tamil  Nadu  Act
\n    XXV of 1954); or<\/p>\n
         (iv) a Panchayat Union Council or a Panchayat
\n    constituted  under the Tamil Nadu Panchayats  Act,
\n    1958 (Tamil Nadu Act XXXV of 1958).”\n<\/p>\n
\n      Under  Section  2(30) “planning area” means  any  area<\/p>\n
declared to be a regional planning area, local planning area<\/p>\n
or  a  site  for  a new town under this Act.  Under  Section<\/p>\n
2(36) “public purpose” means any purpose which is useful  to<\/p>\n
the  public or any class or section of the public.   Section<\/p>\n
11  envisages  constitution  of town  and  country  planning<\/p>\n
authorities.  Section 11(1) is as follows :<\/p>\n
          11(1) As soon as may be, after declaration of
\n     a regional planning area, a local planning area or
\n     the  designation of a site for a  new  town  under
\n     section  10,  the Government may, in  consultation
\n     with  the Director, constitute for the purpose  of
\n     the performance of the functions assigned to them,
\n     an   authority   called  the  “regional   planning
\n     authority”, the “local planning authority”, or the
\n     “new town development authority”, as the case  may
\n     be, for that area having jurisdiction over it:\n<\/p><\/blockquote>\n
           Provided  that,  in  case  where  the  local
\n     planning   area   consists  of  the   area   under
\n     jurisdiction  of  a  single local  authority,  the
\n     Government may declare such local authority as the
\n     local planning authority for that area.<\/p><\/blockquote>\n
      Under  Section 11(2), the regional planning  authority<\/p>\n
constituted  under  sub-section (1)  shall  consist  of  the<\/p>\n
Chairman  to  be  appointed by the  Government,  the  Deputy<\/p>\n
Director  of  Town and Country Planning of  the  region  and<\/p>\n
others.   Under Section 11(3), the local planning  authority<\/p>\n
constituted  under  sub-section (1)  other  than  the  local<\/p>\n
authority  which  has been declared as  the  local  planning<\/p>\n
authority  under the said sub-section shall consist  of  the<\/p>\n
Chairman  to  be appointed by the Government and  others  as<\/p>\n
envisaged  in other clauses.  Under Section 11(4),  the  new<\/p>\n
town  development  authority constituted under   sub-section<\/p>\n
(1)  shall  consist of the Chairman to be appointed  by  the<\/p>\n
Government, the Chairman of the regional planning  authority<\/p>\n
or  a member of the regional planning authority nominated or<\/p>\n
the  Deputy  Director of Town and Country  Planning  of  the<\/p>\n
region concerned and others.\n<\/p>\n<\/p>\n
      Functions  and  powers  of  the  appropriate  planning<\/p>\n
authorities  are envisaged under Section 12.  Under  Section<\/p>\n
12(1),  the  functions of Regional Planning authority  inter<\/p>\n
alia  shall  be  to prepare a regional plan.  Similarly  the<\/p>\n
function of local planning authority shall be inter alia  to<\/p>\n
prepare a master plan or a detailed development plan and  to<\/p>\n
carry  out or cause to carry out such works contemplated  in<\/p>\n
the master plan and detailed development plan.<\/p>\n
      Under  Section 20(1) a detailed development  plan  may<\/p>\n
propose  or provide for all or any of the following  matters<\/p>\n
indicated  therein. Clause (k) relates to the  allotment  or<\/p>\n
reservation  of  land for streets, roads,  squares,  houses,<\/p>\n
buildings  for  religious  and  charitable  purposes,   open<\/p>\n
spaces,   gardens,  recreation  grounds,  schools,  markets,<\/p>\n
shops,  factories, hospitals, dispensaries, public buildings<\/p>\n
and   public   purposes  of  all  kinds  and  defining   and<\/p>\n
demarcating  of,  the  reconstituted  plots  or  the   areas<\/p>\n
allotted to or reserved for, the above mentioned purposes.<\/p>\n
      Under  Section 21, the local planning authority  shall<\/p>\n
prepare  and  submit  a  detailed development  plan  to  the<\/p>\n
Director and under Section 23, the Director may require  the<\/p>\n
local  planning  authority to prepare  detailed  development<\/p>\n
plan.   Under  Section 25, consent of the  Director  to  the<\/p>\n
publication  of  notice  of  preparation  of  the   detailed<\/p>\n
development plan is envisaged and is quoted hereunder :-<\/p>\n
            “25.   Consent  of  the  Director  to   the
\n     publication  of  notice  of  preparation  of   the
\n     detailed development plan.- (1) As soon as may be,
\n     after  the  detailed  development  plan  has  been
\n     submitted to the Director but not later than  such
\n     time as may be prescribed, the Director may direct
\n     the   local   planning  authority  to  make   such
\n     modifications in the detailed development plan  as
\n     he thinks fit in the public interest and thereupon
\n     the  local  planning  authority  shall  make  such
\n     modifications and resubmit it to him.\n<\/p><\/blockquote>\n
            (2)   The   Director   shall,   after   the
\n     modifications, if any, directed by him, have  been
\n     made,  give  his  consent to  the  local  planning
\n     authority to the publication of a notice under sub-
\n     section  (1) of section 27, of the preparation  of
\n     the detailed development plan.”\n<\/p><\/blockquote>\n
Section 27 is as follows :\n<\/p>\n<\/p>\n
            “27.  Notice  of  the  preparation  of  the
\n     detailed  development plan. – (1) As soon  as  may
\n     be,   after  the  local  planning  authority   has
\n     received  the consent of the Director  under  sub-
\n     section  (2)  of section 25 to the publication  of
\n     the  notice,  the  local planning authority  shall
\n     publish  the  notice in the Tamil Nadu  Government
\n     Gazette,  and in leading daily newspapers  of  the
\n     region   of   the  preparation  of  the   detailed
\n     development  plan and the place  or  places  where
\n     copies  of  the  same  may be inspected,  inviting
\n     objections and suggestions, in writing,  from  any
\n     person  in  respect of the said plan  within  such
\n     period as may be specified in the notice:\n<\/p><\/blockquote>\n
           Provided that such period shall not be  less
\n     than  two  months from the date of the publication
\n     of   the  notice  in  the  Tamil  Nadu  Government
\n     Gazette.\n<\/p><\/blockquote>\n
           (2) After the expiry of the period mentioned
\n     in  sub-section (1), the local planning  authority
\n     shall  allow  a  reasonable opportunity  of  being
\n     heard  to any person including representatives  of
\n     Government departments and authorities,  who  have
\n     made  a  request for being so heard and make  such
\n     amendments to the detailed development plan as  it
\n     considers  proper and shall submit the  said  plan
\n     with or without modifications to the Director.”<\/p><\/blockquote>\n
      Under Section 29, the Director is empowered to approve<\/p>\n
the  detailed  development plan or  may  approve  with  such<\/p>\n
modifications as considered necessary or may return the plan<\/p>\n
to the local planning authority to modify the same.<\/p>\n
     Section 31 is as follows :\n<\/p>\n<\/p>\n
          31.  Coming  into operation of  the  detailed
\n    development  plan.-  (1)  Immediately   after   the
\n    detailed development plan has been approved by  the
\n    Director,   the  local  planning  authority   shall
\n    publish  a  notice  in  the Tamil  Nadu  Government
\n    Gazette and in the leading daily newspapers of  the
\n    region   of   the   approval   of   the    detailed
\n    development  plan and such notice shall  state  the
\n    place  or  places  and  time at which the said plan
\n    shall be open to the inspection of the public.<\/p>\n
          (2) A notice published under sub-section  (1)
\n    shall  be  conclusive evidence  that  the  detailed
\n    development  plan has been duly made and  approved.
\n    The  said  plan shall come into operation from  the
\n    date  of  publication of such notice in  the  Tamil
\n    Nadu Government Gazette.\n<\/p>\n
\n      Under  Section 33, a detailed development plan may  be<\/p>\n
varied or revoked by a subsequent plan prepared and approved<\/p>\n
under the Act.  Section 34 is as follows:-\n<\/p>\n
          “34.  Detailed town planning schemes prepared
\n    under  the  Tamil  Nadu Town  Planning  Act,  1920,
\n    deemed to be detailed development plans under  this
\n    Act.-   Every   detailed   town   planning   scheme
\n    notified,  submitted or sanctioned under the  Tamil
\n    Nadu  Town Planning Act, 1920 (Tamil Nadu  Act  VII
\n    of  1920) together with any variation made  thereto
\n    shall, for purposes of this Act, be deemed to be  a
\n    detailed  development plan made under the  Act  and
\n    all  actions  taken under the said Act  in  respect
\n    thereof  shall be deemed to have been  taken  under
\n    the Act.”\n<\/p><\/blockquote>\n
     Chapter IV relates to acquisition and disposal of land.\n<\/p><\/blockquote>\n
Under  Section 36 any land required, reserved or  designated<\/p>\n
in  a  detailed development plan shall be deemed to be  land<\/p>\n
needed   for   a  public  purpose.   Under  Section   37(1),<\/p>\n
appropriate  planning authority is empowered to  take  steps<\/p>\n
for  acquisition  of  such land.  Thereafter  under  Section<\/p>\n
37(2), the Government may take steps as contemplated in  the<\/p>\n
Land  Acquisition  Act.   Section 38  is  to  the  following<\/p>\n
effect:\n<\/p>\n
           “38. Release of land.- If within three years
\n     from the date of the publication of the notice  in
\n     the Tamil nadu Government Gazette under section 26
\n     or section 27 –\n<\/p><\/blockquote>\n
          (a) no declaration as provided in sub-section<\/p>\n
     (2)  of section 37 is published in respect of  any
\n     land  reserved,  allotted or  designated  for  any
\n     purpose specified in a regional plan, master plan,
\n     detailed  development plan or new town development
\n     plan covered by such notice; or<\/p>\n<\/blockquote>\n
          (b) such land is not acquired by agreement,
\n     such land shall be deemed to be released from such
\n     reservation, allotment or designation.”\n<\/p><\/blockquote>\n
           14.  The  provisions contained in the Tamil  Nadu<\/p>\n
Town and Country Planning Act, therefore, envisages that  if<\/p>\n
any  private  land  is included in the detailed  development<\/p>\n
plan  for  any  public  purpose,  ultimately  such  land  is<\/p>\n
required  to  be acquired in accordance with the  provisions<\/p>\n
contained in the said Act read with the Land Acquisition Act<\/p>\n
and  if  such steps are not completed within the  stipulated<\/p>\n
period  under  Section 38, the land shall be  deemed  to  be<\/p>\n
released from such reservation, allotment or designation.<\/p><\/blockquote>\n
           15.  These provisions form the main plank of  the<\/p>\n
learned  Senior  Counsel  appearing  for  Respondent   No.4.<\/p>\n
Learned  Senior  Counsel  has also placed  reliance  upon  a<\/p>\n
decision of the Supreme Court reported in (2005)11 SCC  222,<\/p>\n
wherein it was observed :\n<\/p>\n<\/p>\n
           “3. … It is true that when it was shown as<\/p>\n
     a   garden  in  the  draft  development  plan,  no<\/p>\n
     objection   was  raised  and  final   notification<\/p>\n
     declaring  this land as earmarked for  garden  was<\/p>\n
     published.  It is true that a development plan can<\/p>\n
     be  prepared  of a land comprising  of  a  private<\/p>\n
     person  but  that plan cannot be implemented  till<\/p>\n
     the  land  belonging  to  the  private  person  is<\/p>\n
     acquired by the Panning Authority.  It is not that<\/p>\n
     the  Planning Authority was ignorant of this fact.\n<\/p><\/blockquote>\n
     It   acquired  some  land  from  Plot  No.437  for<\/p>\n
     developing  garden but the land from  Plot  No.438<\/p>\n
     was  not  acquired  for  garden.   Therefore,  the<\/p>\n
     question  is whether the Government can prepare  a<\/p>\n
     development plan and deprive the owner of the land<\/p>\n
     from using that land?  There is no prohibition  of<\/p>\n
     including private land in a development  plan  but<\/p>\n
     no  development  can be made on that  land  unless<\/p>\n
     that  private  land is acquired  for  development.\n<\/p><\/blockquote>\n
     The  Government  cannot deprive the  persons  from<\/p>\n
     using their private property.  We quite appreciate<\/p>\n
     the  interest of the residents of that  area  that<\/p>\n
     for  the  benefit  of the ecology,  certain  areas<\/p>\n
     should be earmarked for garden and park so  as  to<\/p>\n
     provide  fresh  air  to  the  residents  of   that<\/p>\n
     locality.   In order to provide such amenities  to<\/p>\n
     the  residents  of the area private  land  can  be<\/p>\n
     acquired  in  order  to  effectuate  their  public<\/p>\n
     purpose but without acquiring the private land the<\/p>\n
     Government  cannot deprive the owner of  the  land<\/p>\n
     from using that land for residential purpose.”<\/p><\/blockquote>\n
      Referring  to  the decision of the  Supreme  Court  in<\/p>\n
(1991)  4  SCC 54 (BANGALORE MEDICAL TRUST v. B.S. MUDDAPPA)<\/p>\n
and<\/a> (2005)3 SCC 61 (BALAKRISHNA H: SAWANT v. SANGLI MIRAJ  &<\/p>\n
KUPWAD CITY MUNICIPAL CORPORATION),<\/a> it was observed :<\/p>\n
          “3.  …  In  the  case of Bangalore  Medical<\/p>\n
    Trust  the  open space reserved for park under  the<\/p>\n
    development  scheme was converted into  a  hospital<\/p>\n
    in  favour  of  a  private body by the  Development<\/p>\n
    Authority at the instance of the Chief Minister  of<\/p>\n
    the  State.   Therefore, this  Court  examined  the<\/p>\n
    provisions  of the Bangalore Development  Authority<\/p>\n
    Act,   1976   and  after  considering   all   those<\/p>\n
    provisions,  this Court held that  this  unilateral<\/p>\n
    act  of the Bangalore Development Authority at  the<\/p>\n
    instance of the Chief Minister of the State  cannot<\/p>\n
    be  countenanced.   In  that  case,  the  area  was<\/p>\n
    reserved for park and playground.  Section 38-A  of<\/p>\n
    the   Bangalore  Development  Authority  Act,  1976<\/p>\n
    specifically  prohibited that the  authority  shall<\/p>\n
    not  sell or otherwise dispose of any area reserved<\/p>\n
    for   public  parks  and  playgrounds   and   civic<\/p>\n
    amenities   for   any   other   purpose   and   any<\/p>\n
    disposition  so  made  shall  be  null  and   void.\n<\/p><\/blockquote>\n
    Firstly,  there  is  no such  provision  under  the<\/p>\n
    Maharashtra  Regional and Town Planning  Act,  1966<\/p>\n
    and  secondly, the area which is earmarked for  the<\/p>\n
    purpose of park and playground was not owned  by  a<\/p>\n
    private  person.  In the present case,  though  the<\/p>\n
    development  plan  has been prepared  in  the  year<\/p>\n
    1966  and  the  area  has been  earmarked  for  the<\/p>\n
    purpose   of   garden   but   no   proceeding   for<\/p>\n
    acquisition of the present plot was ever  initiated<\/p>\n
    by  the respondent Municipal Corporation or by  the<\/p>\n
    State  Government.   There is  no  prohibition  for<\/p>\n
    preparing   the  development  plan  comprising   of<\/p>\n
    private  land  but that plan cannot be  implemented<\/p>\n
    unless  the  said private land is acquired  by  the<\/p>\n
    Government   for  development  purpose.    In   the<\/p>\n
    present  case, the area comprising in  Plot  No.438<\/p>\n
    belonged  to the appellants and that no steps  were<\/p>\n
    taken  to  acquire  the  said  land  by  the  State<\/p>\n
    Government or by the Municipal Corporation of  Pune<\/p>\n
    and   the   Municipal   Corporation   had   already<\/p>\n
    expressed their inability to acquire that land  and<\/p>\n
    therefore,  the  said land has been  dereserved  by<\/p>\n
    the  State Government.  Therefore, the present case<\/p>\n
    has  no  semblance  to  that of  Bangalore  Medical<\/p>\n
    Trust   case.   The  question  is  whether  without<\/p>\n
    acquiring  the  land the Government can  deprive  a<\/p>\n
    person  of  his  use  of the  land.   This  in  our<\/p>\n
    opinion,  cannot  be  done.   It  would  have  been<\/p>\n
    possible  for  the  Municipal Corporation  and  the<\/p>\n
    Government  of Maharashtra to acquire the  land  in<\/p>\n
    order to provide civic amenities.  But the land  in<\/p>\n
    question  has  not  been acquired.   We  are  quite<\/p>\n
    conscious  of  the  fact that  the  open  park  and<\/p>\n
    garden  are  necessary  for the  residents  of  the<\/p>\n
    area.   But  at the same time we cannot lose  sight<\/p>\n
    of  the  fact  that a citizen is  deprived  of  his<\/p>\n
    rights without following proper procedure of law.”\n<\/p><\/blockquote>\n
           16.  Keeping in view the provisions contained  in<\/p>\n
the  Tamil Nadu town and Country Planning Act and  ratio  of<\/p>\n
the decision of the Supreme Court, the contention raised  by<\/p>\n
the  learned Senior Counsel for Respondent No.4  is  to  the<\/p>\n
effect that the private land not having been acquired  shall<\/p>\n
be deemed to have been released.<\/p><\/blockquote>\n
           17. The effect of Section 250 of the Madurai City<\/p>\n
Municipal Corporation Act, 1971 is, however, required to  be<\/p>\n
examined.  Section 250 is extracted hereunder :<\/p>\n
         “250. Owners Obligation to Make a Street When
\n    Disposing of Lands as Building Sites<\/p>\n
         (1) If the owner of any land utilizes, sells,
\n    leases  or otherwise disposes of such land or  any
\n    portion  or portions of the same as sites for  the
\n    construction of buildings, he shall save  in  such
\n    cases as the site or sites may abut on an existing
\n    public or private street, layout and make a street
\n    or  streets giving access to the site or sites and
\n    connecting  with  an existing  public  or  private
\n    street.\n<\/p><\/blockquote>\n
          (2) In regard to the laying out or making of
\n    any  such  street  or streets, the  provisions  of
\n    section 251 shall apply, subject to the conditions
\n    that the owner shall remit a sum not exceeding  50
\n    per   cent  of  the  estimated  cost  of   lay-out
\n    improvements in the land and that the owner  shall
\n    also reserve not exceeding 10 per cent of the lay-
\n    out for the common purpose in addition to the area
\n    provided  for  laying out streets.  If  any  owner
\n    contravenes any of the conditions specified above,
\n    he shall be liable for prosecution<\/p>\n
          (3)  If in any case, the provisions, of sub-
\n    sections (1) and (2) have not been complied  with,
\n    the  Commissioner  may,  by  notice,  require  the
\n    defaulting  owner to layout and make a  street  or
\n    streets on such land and in such manner and within
\n    such time as may be specified in the notice.\n<\/p><\/blockquote>\n
          (4)  If such street or streets are not  laid
\n    out  an  made  in the manner and within  the  time
\n    specified in the notice the Commissioner may  lay-
\n    out  and  make  the  street or  streets,  and  the
\n    expenses  incurred  shall be  recovered  from  the
\n    defaulting owner<\/p>\n
          (5)  The Commissioner may in his discretion,
\n    issue the notice referred to in sub-section (3) or
\n    recover  the  expenses referred to in  sub-section
\n    (4)  to  or  from the owners of any  buildings  or
\n    lands  abutting on the street or streets concerned
\n    but any such owner shall be entitled to recover ll
\n    reasonable  expenses  incurred  by  him   or   all
\n    expenses paid by him, as the case may be, from the
\n    defaulting owner referred to in sub-section (3).”\n<\/p><\/blockquote>\n
           18.  From the materials on record, it is apparent<\/p>\n
that  the  area  in  question became  part  of  the  Madurai<\/p>\n
Corporation   with   effect  from   1974.    Thereafter   an<\/p>\n
application  was  filed for approval  of  the  layout  plan.\n<\/p><\/blockquote>\n
According to the case of the Respondent No.4, even though it<\/p>\n
was  not  so  required  under the law, Respondent  No.4  was<\/p>\n
forced  to  make  such application.  It is not  possible  to<\/p>\n
countenance such a plea that Respondent No.4 was  forced  to<\/p>\n
seek  for  approval  of the layout plan.   However,  it  has<\/p>\n
already been found in the earlier litigations that while the<\/p>\n
disputed  land did not form part of the Madurai Corporation,<\/p>\n
PR.21\/1972 had been approved by Tallakulam Town Panchayat by<\/p>\n
resolution  dated  18.5.1972,  which  was  communicated   on<\/p>\n
19.5.1972.   It is claimed by Respondent No.4 that  in  such<\/p>\n
approved  plan  40  plots  in question  were  not  shown  as<\/p>\n
reserved for any public purpose or for common purpose or for<\/p>\n
school  and since the Madurai Corporation became a successor<\/p>\n
of  Tallakulam Town Panchayat after the area became part  of<\/p>\n
Madurai  Corporation,  such Corporation  is  bound  by  such<\/p>\n
approved layout plan.\n<\/p>\n<\/p>\n
           19.  We do not think the submission made  by  the<\/p>\n
learned  Senior Counsel for Respondent No.4 can be  accepted<\/p>\n
in  such  broad  terms.  To the extent Respondent  No.4  had<\/p>\n
acted  upon  the approved plan of Tallakulam Town Panchayat,<\/p>\n
obviously such action cannot be found fault with because  of<\/p>\n
any  subsequent  development such as  coming  of  such  area<\/p>\n
within   the   Madurai  Corporation  area.   The  provisions<\/p>\n
contained in Madurai City Municipal Corporation Act would be<\/p>\n
made  applicable with effect from the date on which any area<\/p>\n
becomes part of the Corporation and any action taken  before<\/p>\n
such  date  obviously  cannot be  challenged  or  re-opened.<\/p>\n
Filing  of  an  application before the Madurai  Corporation,<\/p>\n
which  was ultimately approved and became Plan No.1 of 1975,<\/p>\n
cannot be considered as a mere formality.  To the extent any<\/p>\n
alienation  or  construction had  been  made  by  virtue  of<\/p>\n
Tallakulam  Town  Panchayat PR 21\/1972,  such  acts  are  of<\/p>\n
course required to be protected.\n<\/p>\n<\/p>\n
           20. In the present case, however, it appears that<\/p>\n
alienation  of the property has taken place only  after  the<\/p>\n
area  became part of the Madurai Corporation.  There  is  no<\/p>\n
dispute  that,  in such Plan No.1 of 1975, which  was  filed<\/p>\n
and  approved by the appropriate authorities after the  area<\/p>\n
in  question became part of Madurai Corporation, the land in<\/p>\n
question  had  been  shown as meant for  school  and  public<\/p>\n
purpose  or common use.  Section 250(2) of the Madurai  City<\/p>\n
Municipal  Corporation Act envisages that area upto  10%  of<\/p>\n
the layout is required to be reserved for common purpose  in<\/p>\n
addition  to  the area provided for laying out streets.   If<\/p>\n
the  owner  contravenes  any of  the  conditions  stated  in<\/p>\n
Section 250, he shall be liable for prosecution.  Once  such<\/p>\n
lay-out  is  filed and approved it must be taken  that  such<\/p>\n
area is required to be used for common purpose and the owner<\/p>\n
cannot subsequently wriggle out of such a situation.<\/p>\n
           21.  Possibly to over come such hurdle  envisaged<\/p>\n
under  Section 250(2), learned Senior Counsel appearing  for<\/p>\n
Respondent  No.4  has  relied  upon  the  principle  of  res<\/p>\n
judicata by referring to the decisions of the High Court  as<\/p>\n
well as by pointing out that the suit filed had withdrawn.<\/p>\n
          22. First in point of time is O.S.No.1106 of 1986.<\/p>\n
Such  suit  was  filed by A. Shanmughavel and  S.  Raju  for<\/p>\n
themselves  as well as representatives of the  residents  of<\/p>\n
Karpaganagar,   K.  Pudur,  Madurai  7.    In   such   suit,<\/p>\n
purportedly filed in representative capacity, the prayer was<\/p>\n
for restraining the present Respondent No.4 from selling  or<\/p>\n
using  the suit property for any purpose other than for  the<\/p>\n
purpose  for  which  it was reserved in  L.P.(MR)1\/75  dated<\/p>\n
3.9.1975  and  directing  the third defendant,  the  Special<\/p>\n
Officer  &  Commissioner, Madurai Corporation, to take  over<\/p>\n
the  roads  and common places as per the provisions  of  the<\/p>\n
Madurai City Municipal Corporation Act.  Ultimately  a  memo<\/p>\n
was  filed on 16.8.1980 by the two plaintiffs to the  effect<\/p>\n
that they do not want to prosecute the case and the suit may<\/p>\n
be dismissed.  From Page No.85 of the typed set filed by the<\/p>\n
petitioner  it  appears that such memo was recorded  by  the<\/p>\n
Additional  District Munsif.  The rival parties now  contend<\/p>\n
that either the suit was deemed to be withdrawn or dismissed<\/p>\n
as not pressed.  The question is what is the legal effect of<\/p>\n
such  dismissal\/withdrawal  of  the  suit.   The  suit   was<\/p>\n
purportedly  in the representative capacity  under  Order  1<\/p>\n
Rule  8.   There is no material produced to indicate whether<\/p>\n
initially  the permission to sue in representative  capacity<\/p>\n
had  been  granted  and  the  procedure  contemplated  under<\/p>\n
Order  1 Rule 8 had been followed.  For the purpose  of  the<\/p>\n
present  case, we are prepared to assume that such procedure<\/p>\n
has  been  followed.  However, it is apparent that when  the<\/p>\n
suit  claim was abandoned, the procedure contemplated  under<\/p>\n
Order 1 Rule 8(4) has not been followed.  Order 1 Rule  8(4)<\/p>\n
is to the following effect :\n<\/p>\n<\/p>\n
          “(4)  No  part of the claim in any such  suit<\/p>\n
    shall be abandoned under sub-rule (1), and no  such<\/p>\n
    suit  shall be withdrawn under sub-rule(3), of Rule<\/p>\n
    1  of Order XXIII, and no agreement, compromise  or<\/p>\n
    satisfaction  shall be recorded in  any  such  suit<\/p>\n
    under  Rule 3 of that Order, unless the  Court  has<\/p>\n
    given,  at the plaintiff’s expense, notice  to  all<\/p>\n
    persons  so  interested in the manner specified  in<\/p>\n
    sub-rule (2).”<\/p><\/blockquote>\n
       Since  at  the  stage  of  ultimate  abandonment  the<\/p>\n
provisions contained in Order 1 Rule 8(4) had admittedly not<\/p>\n
been  followed, dismissal or abandonment can be held  to  be<\/p>\n
binding  on  the  two plaintiffs in the said  case,  but  it<\/p>\n
cannot  be  said to be binding on all the persons  who  were<\/p>\n
sought to be represented.\n<\/p>\n<\/p>\n
           23.  The  present round of litigations have  been<\/p>\n
filed  by  the  welfare society.  It is no doubt  true  that<\/p>\n
Plaintiff No.1 in the said case is also the Secretary of the<\/p>\n
Society.   However,  in  the present litigations,  the  said<\/p>\n
Plaintiff  No.1 is in a different capacity and it cannot  be<\/p>\n
said  that  there  is  identity in two capacities.   In  our<\/p>\n
opinion, therefore, the bar envisaged under Order 9  Rule  9<\/p>\n
or Order 23 Rule 1(4)  would not be applicable.<\/p>\n
          24. The next in point of time comes W.P.No.1565 of<\/p>\n
1987 and the orders passed therein.  Such writ petition  was<\/p>\n
filed  by  the  present Respondent No.4.  In the  said  writ<\/p>\n
petition, the present petitioner was not initially impleaded<\/p>\n
as  a  party, the prayer in such writ petition was to  issue<\/p>\n
writ of certiorarified mandamus for quashing the proceedings<\/p>\n
dated   16.12.1986  and  directing  the  Madurai   Municipal<\/p>\n
Corporation  to  grant  permission  to  the  Trust  (present<\/p>\n
Respondent No.4) to put up constructions in the land in Plot<\/p>\n
Nos.276  and  369  in  Survey No.122 Of Tallakulam  Village,<\/p>\n
forming part of Layout Plan In P.R.No.21\/72 dated 19.5.1982,<\/p>\n
approved by Talakulam Town Panchayat.\n<\/p>\n<\/p>\n
           25.  In  that writ petition, reliance was  placed<\/p>\n
upon  D.D.P.(MR)No.12\/80.  The contention was to the  effect<\/p>\n
that in view of P.R.No.21\/72 of Tallakulam Panchayat and the<\/p>\n
subsequent  D.D.P.(MR)No.12\/80, plots in question  could  be<\/p>\n
developed  for  the  purpose of construction.   The  further<\/p>\n
contention  was  that the Plan No.1\/75 was  not  binding  or<\/p>\n
valid.   In the said writ petition, a petition was filed  on<\/p>\n
behalf of the present petitioner represented by Shanmugavel,<\/p>\n
who  had  become the Secretary of the Karpaga Nagar  Welfare<\/p>\n
Association  and by S. Raju, to get themselves impleaded  as<\/p>\n
parties  to the writ petition and it appears that they  were<\/p>\n
so  impleaded.  After noticing the contentions, the  learned<\/p>\n
single Judge disposed of the matter by observing as follows:<\/p>\n
           “3. The lethargic manner in which the matter
\n     is being dragged on for years together without the
\n     citizens  being made aware what is happening,  and
\n     whether a building could be put up in a particular
\n     area  or  not, and whether the Master Plan already
\n     prepared  bearing No.12\/80 can be  acted  upon  or
\n     not,  presents a very dismal picture.  In all such
\n     matters,    expeditious   action   is   absolutely
\n     necessary.  There is scarcity of building areas in
\n     Cities  and  Towns  and in the  peripheral  areas.
\n     There  is overcrowding which does not behave well.
\n     The  Town and Country Planning authorities should,
\n     therefore,  exercise  due diligence  and  expedite
\n     matters  for preparation of Master Plans, Detailed
\n     Development   Plans,   etc.,   so   that   planned
\n     development  can take without any  hindrance.   In
\n     this  view,  there will be an Order in  this  writ
\n     petition  quashing the refusal order made  by  the
\n     Corporation of Madurai for putting up buildings in
\n     Plot   No.276  and  Plot  No.369  under  identical
\n     impugned orders K3\/Ka.vi.838\/86, both dated 16-12-
\n     1986.  The application made by the petitioner  for
\n     sanction of building plan in the above plots shall
\n     stand   restored  to  the  file  of  the   Madurai
\n     Corporation  and shall be disposed of  within  the
\n     statutory  period.  If no orders are  made  within
\n     three  months from today, on the said application,
\n     the  application  will  be  deemed  to  have  been
\n     granted.   It  is made clear that the  Application
\n     can  be  rejected  only in case  in  the  Detailed
\n     Development  Plan for this area, the  above  plots
\n     come  under the classification ‘Reserved for Pubic
\n     Purpose’.   It  is  needless  to  state  that  the
\n     petitioner  will  be given an  opportunity  to  be
\n     heard  in person, if he so desires, in the  matter
\n     of sanction of plan.”\n<\/p><\/blockquote>\n
           26.  Subsequently an application has  been  filed<\/p>\n
numbered as W.M.P.No.3338 of 1992 for extension of  time  to<\/p>\n
take  appropriate decision in terms of the direction of  the<\/p>\n
High  Court,  but,  such  application,  was  rejected.   The<\/p>\n
Madurai  Corporation  at that stage took  steps  for  filing<\/p>\n
appeal,  which was barred by limitation.  The  petition  for<\/p>\n
condonation  of  delay numbered as CMP.No.5044  of  1992  in<\/p>\n
WA.SR.No.32558  of 1992 was dismissed by the Division  Bench<\/p>\n
by  order  dated 30.4.1992.  The net result, therefore,  was<\/p>\n
that the order of the learned single Judge became final.<\/p><\/blockquote>\n
           27.  Since  no  specific order was passed  within<\/p>\n
three  months as specifically directed in the order  of  the<\/p>\n
learned  single  Judge dated 21.11.1991  in  W.P.No.1565  of<\/p>\n
1987,  it  must  be  taken that permission  was  granted  to<\/p>\n
Respondent  No.4  Trust  to put  up  construction   in  Plot<\/p>\n
Nos.276 and 369.\n<\/p>\n<\/p>\n
           28. It is no doubt true that in the said order it<\/p>\n
was  observed  that application for grant of permission  for<\/p>\n
construction  of building can be rejected only  in  case  in<\/p>\n
the  Detailed Development Plan for this area, the two  plots<\/p>\n
came under the classification “reserved for public purpose”.<\/p>\n
In  such view of the matter, neither the present petitioners<\/p>\n
nor  the  respondent Madurai Corporation can claim that  two<\/p>\n
plots  in question can still be said to be held as  part  of<\/p>\n
the  public purpose or for common use and willy-nilly  those<\/p>\n
two  plots must be excluded from the purview of the  present<\/p>\n
consideration.   However, it cannot be said  that  the  said<\/p>\n
order   of   the  learned  single  Judge,  which   had   not<\/p>\n
specifically  decided  any of the question  raised  but  had<\/p>\n
merely  given a direction to Madurai Corporation to consider<\/p>\n
the  application for grant of planning permission,  operates<\/p>\n
as res judicata.\n<\/p>\n<\/p>\n
          29. The next in point of time comes W.P.No.8692 of<\/p>\n
1998.    Such  writ  petition  was  filed  by  the   present<\/p>\n
Respondent   No.4   initially   impleading   only    Madurai<\/p>\n
Corporation,  but subsequently the present  writ  petitioner<\/p>\n
got  impleaded.   The  said writ petition  was  against  the<\/p>\n
notice  issued by the Madurai Corporation calling  upon  the<\/p>\n
present   Respondent  No.4  to  pay  50%  of  the   sum   of<\/p>\n
Rs.80,69,768\/-, being the total cost for laying roads in the<\/p>\n
area.   The  only question raised therein was as to  whether<\/p>\n
the  roads shown in the layout plan had been handed over  to<\/p>\n
Tallakulam  Town Panchayat.  Learned single Judge ultimately<\/p>\n
came to the conclusion that the roads had been laid and  had<\/p>\n
been  handed  over  to  Tallakulam Town  Panchayat  for  the<\/p>\n
purpose of maintenance and, therefore, the roads had  vested<\/p>\n
with  the  Panchayat  and  thereafter  vested  with  Madurai<\/p>\n
Corporation, consequent on the inclusion of Tallakulam  area<\/p>\n
in  Madurai City Municipal Corporation limits.  In  view  of<\/p>\n
such  conclusion,  the learned single  Judge  observed  that<\/p>\n
Madurai  Corporation  had  no  jurisdiction  to  invoke  the<\/p>\n
provisions   contained in Section 250 of  the  Madurai  City<\/p>\n
Municipal Corporation Act.\n<\/p>\n<\/p>\n
          30. The question as to whether some lands had been<\/p>\n
kept  apart for common use was not in issue in the said writ<\/p>\n
petition.   The decision in the writ petition had  been,  of<\/p>\n
course,  upheld  by  a  Division  Bench  of  this  Court  in<\/p>\n
W.A.No.412  of  1995  dated 4.9.1997.   However,  since  the<\/p>\n
question  arising  from  the scope of  Section  250  of  the<\/p>\n
Madurai   City  Municipal  Corporation  Act,   relating   to<\/p>\n
earmarking  of  certain  area as  for  common  purpose,  was<\/p>\n
neither  directly in issue nor it was specifically  decided,<\/p>\n
we  are  unable to accept the contention of Respondent  No.4<\/p>\n
that the said decision also operates as res judicata.<\/p>\n
           31.  Keeping in view the scheme of the Tamil Nadu<\/p>\n
Town  and  Country Planning Act, it is obvious that  if  any<\/p>\n
private  land is to be included in the Development  Plan  as<\/p>\n
contemplated  in  the Tamil Nadu Town and  Country  Planning<\/p>\n
Act,  steps  are  required to be taken  as  contemplated  in<\/p>\n
Section  37 or 38.  However, this conclusion cannot come  to<\/p>\n
the  rescue of Respondent No.4.  It cannot be contended that<\/p>\n
Section 250 of the Madurai City Municipal Corporation Act is<\/p>\n
either  impliedly or expressly repealed by  the  Tamil  Nadu<\/p>\n
Town  and  Country  Planning Act, 1971.  In  our  considered<\/p>\n
opinion, the provisions contained in both the Acts are to be<\/p>\n
read together and not in derogation to each other.  Both the<\/p>\n
Acts operate on different fields.  Requirement under Section<\/p>\n
250  regarding  reserving certain land  as  common  for  the<\/p>\n
purpose of sanction of a layout plan stands on its own.  The<\/p>\n
aim  and  object of the Tamil Nadu Town and Country Planning<\/p>\n
Act  is  on a different sphere.  Section 250 of the  Madurai<\/p>\n
City  Municipal  Corporation Act  is  a  specific  provision<\/p>\n
relating  to  a  particular contingency and required  to  be<\/p>\n
given  effect  to.  For obtain approval of any lay-out,  the<\/p>\n
owner is required to earmark certain area as for common  use<\/p>\n
as  envisaged under Section 250(2).  Only upon  such  basis,<\/p>\n
the  plan would be approved by the appropriate authority and<\/p>\n
in  such  an event such land is dedicated for the same  use.<\/p>\n
The  purpose of Tamil Nadu Town and Country Planning Act  is<\/p>\n
different.  It is for the purpose of land development and if<\/p>\n
the  authorities come to the conclusion that any  particular<\/p>\n
area  or  land is required to be earmarked for the  purposes<\/p>\n
envisaged  in the Tamil Nadu Town and Country Planning  Act,<\/p>\n
they  are  required to acquire such land in accordance  with<\/p>\n
the  provisions contained in the Land Acquisition  Act  read<\/p>\n
with Section 37 of the  Tamil Nadu Town and Country Planning<\/p>\n
Act.   However,  Section 250 of the Madurai  City  Municipal<\/p>\n
Corporation Act does not envisage any such procedure.  While<\/p>\n
obtaining  sanction  of a layout plan by  reserving  certain<\/p>\n
area  as common use, it can be said that the owner gives  up<\/p>\n
such  promise  to the person interest and once such  promise<\/p>\n
fortifies  in an approved layout plan, obviously the  person<\/p>\n
cannot  be  permitted  to  take a different  stand.   It  is<\/p>\n
therefore  immaterial  as  to  whether  the  proceedings  as<\/p>\n
contemplated in the Tamil Nadu Town and Country Planning Act<\/p>\n
are  completed or not inasmuch as the land, which  had  been<\/p>\n
dedicated for the common use, after acceptance of such  plan<\/p>\n
by   the  appropriate  authorities  would  continue  to   be<\/p>\n
dedicated for the common use.\n<\/p>\n<\/p>\n
           32. In the above view of the matter, we allow the<\/p>\n
writ  petitions  and  direct  that  the  plots  covered   in<\/p>\n
L.P.\/MRI\/75  cannot be used for any purpose other  than  the<\/p>\n
public purpose mentioned in such L.P.\/MRI\/75.  However, this<\/p>\n
direction would not be applicable to two plots, namely, Plot<\/p>\n
Nos.276   and  369,  which  were  the  subject   matter   of<\/p>\n
W.P.No.1565 of 1987.  No costs.\n<\/p>\n
ga\/dpk<\/p>\n
[PRV\/10433]<\/p>\n","protected":false},"excerpt":{"rendered":"
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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,13],"tags":[],"class_list":["post-216035","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madras-high-court"],"yoast_head":"\nKarpaga Nagar Nala Urimai Sangam vs Municipal Administration & Water ... on 27 April, 2007 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/karpaga-nagar-nala-urimai-sangam-vs-municipal-administration-water-on-27-april-2007\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Karpaga Nagar Nala Urimai Sangam vs Municipal Administration & Water ... on 27 April, 2007 - 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