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 and Water Supply Department 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, bearing Plot Nos.272 to 281, 342 to 343 and 364 to 373 Madurai permit them to be used for any purpose other than the public purposes mentioned in L.P./MRI/70 and detailed Development Plan DT/CP[MR] 9.92 respectively. https://hcservices.ecourts.gov.in/hcservices/ For Petitioners :Mr.N.L.Rajah For Respondents 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 https://hcservices.ecourts.gov.in/hcservices/ 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 https://hcservices.ecourts.gov.in/hcservices/ 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. https://hcservices.ecourts.gov.in/hcservices/ 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 https://hcservices.ecourts.gov.in/hcservices/ 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 https://hcservices.ecourts.gov.in/hcservices/ 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 https://hcservices.ecourts.gov.in/hcservices/ 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 :- https://hcservices.ecourts.gov.in/hcservices/ 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 https://hcservices.ecourts.gov.in/hcservices/ 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