IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:21.1.2008 CORAM; THE HONOURABLE MR.JUSTICE P.JYOTHIMANI W.P.NO.40577 OF 2002 Raja Baskara Kumara Shanmugam @ N.Kumaran Sethupathy rep. by Power Agent S.A.Sulaiman S/o S.Abdul Gaffur No.4/75, West Street Mandapam Town & Post Ramanathapuram District ..Petitioner vs 1.The Director of Town and Country Planning Anna Salai, Chennai 600 006 2.The Commissioner Ramanathapuram Municipality Ramanathapuram ..Respondents Writ Petition is filed under Article 226 of the Constitution of India for the issue of writ of Certiorarified Mandamus to call for the entire records in connection with the impugned letter of the 2nd respondent made in Na.Ka.No.5618/2002/2002 dated 17.8.2002 and quash the same and consequently forbear the respondents from in any manner interfering with the petitioner's right to construct in his own lands in S.No.313/1, Town Survey No.86/A1, Rajasuriyamadai Group, Ramanathapuram. for petitioner :Mr.M.Venkatachalapathy Senior Counsel for Mr.M.Sriram for respondents :Mr.L.S.M.Hasan Fizal Government Advocate(W) (for R1) Mr.P.S.Jayakumar (for R2) https://hcservices.ecourts.gov.in/hcservices/ ORDER The petitioner is stated to be the owner of the lands at S.No.313/1 which is co-related to T.S.No.86 A/1 and 321/1A, 2B1, 314/2, Rajasuriyamadai Group, Ramanathapuram. 2.In this present Writ Petition we are concerned only with the S.No.313/1. According to the petitioner, the property originally belonged to Shanmuga Rajehswara Sethupathy, the Raja of Ramnad. Under the Estate Abolition Act when the Government took steps to cancel the patta issued in respect of the lands the same was challenged by the original owner, the then Raja of Ramnad. This Court in W.P.No.3920/1976 by order dated 31.1.1979 has set aside the order and restored the patta issued in respect of the said land. The said S.Ramanatha Sethupathi has applied for permission to divide the lands comprised in various Survey Numbers including the land in S.No.313/1 as plots to the Municipal Commissioner, Ramnathapuram, the 2nd respondent. The Director of Town and Country Planning accorded sanctioned lay-out on 10.12.1974 and the second respondent Municipality has also passed a resolution on 10.1.1975 approving the lay-out subject to various conditions laid down by the Director of Town and Country Planning. According to the petitioner, the sanction was only a provisional sanction and as per the lay-out, places which were left for 30 feet street are to be metallized, drainage and other facilities have to be provided. It is the case of the petitioner that as per the lay-out the original owner has not gifted any portion of the properties which are ear-marked for public purposes for streets, etc., and therefore, apart from the said conditional approval made by the Municipality, no further steps were taken and therefore, the approved plan was not given effect to. The petitioner's mother Smt.Mahalakshmi Nachiyar was allotted the land in question, namely, S.No.313/1 along with some other plots also. She has also not acted as per the sanctioned plan and the plan was not given effect to. The petitioner being the legal heir of Smt.Mahalakshmi Nachiyar wanted to make improvement of the land and it was at that time the authorities have raised objections that the construction has to be done as per the approved lay-out of the year 1974. The petitioner's case is that, inasmuch as no further action was taken based on the approved lay-out, there is no presumption of existence of any road portion and therefore, the petitioner is free to put up the construction as he likes subject to any subsequent statutory restrictions and it is his case in respect of various other cases also the second respondent Municipality has given necessary sanction for putting up construction. It is in these circumstances, the impugned order came to be passed by the second https://hcservices.ecourts.gov.in/hcservices/ respondent Municipality stating that the petitioner has encroached upon the 30 feet street which has been ear-marked in the approved lay-out and that should be treated as unauthorised occupation and therefore, the petitioner is not entitled for any notice for the purpose of removal of such encroachment. It is the said order which is challenged by the petitioner on various grounds including that, as per the sanctioned lay-out of 1974 nothing was done and therefore, there is no presumption of any street allotted for public purpose, that the second respondent has itself approved sanction of building plans in respect of various other properties in the same Survey Number as well as properties comprised in the lay-out without insisting for leaving place for allotment of public street, that under the Tamil Nadu Town and Country Planning Act when once plan has been sanctioned if the plan is not given effect to within a period of three years the said plan lapses and thereafter, it is only for the party to make fresh application and in the present case, the petitioner is not interested in proceeding with the lay-out and he has not made any application and that even as per the District Municipalities Act, if any alteration is made, it is open to the authorities to remove such alteration or unauthorised construction only after giving notice. 3.(i)On the other hand, it is the case of the second respondent Municipality that when once the plan was sanctioned in 1974 which contains various provisions for public purpose including street, etc., it is obligatory on the part of the applicant to keep those provisions for public purpose and it is not open to him to use as he likes. (ii)It is also the case of the second respondent Municipality that when once the plan is sanctioned, the property vests with the Municipality and therefore it should be presumed to be for public purpose and the petitioner looses his right and in these circumstances, since the original owner has attempted to encroach, he was treated as encroacher and therefore, the question of issuing notice does not arise. (iii)It is also further stated that the second respondent has considered the representation of the petitioner dated 3.8.2002 and passed orders. It is also the case of the second respondent in the counter affidavit that if Mahalakshmi Nachiyar has succeeded the property of the original owner, Raja of Ramanathapuram, she is bound by the undertaking of the original owner as per the sanctioned plan to leave the portion earmarked for public purpose and having inherited the property she cannot take her own stand and she is bound by the original stand taken by the original owner. https://hcservices.ecourts.gov.in/hcservices/ 4.Mr.M.Venkatachalapathy, learned senior counsel for the petitioner would submit that the impugned order of the second respondent is not valid for more than one reason. According to him, if the Tamil Nadu Town and Country Planning Act is applied, application for permission is made by any owner of the property for development. When once such permission is given, unless and until the said sanction is implemented within a period of three years, the plan will not be operative. Otherwise, according to him, after the lapse of 3 years from the date of sanction, the sanctioned plan automatically lapses. Therefore, the question of treating the sanctioned plan and conditions and conditions contained therein are treated to be in existence does not arise. He further submits that as per Section 50 of the Tamil Nadu Town and Country Planning Act after the lapse of three years, when once the sanctioned plan lapsed, unless the owner of the property apply afresh or unless and until the portions of the property are gifted away to the 2nd respondent Municipality, it cannot be said that the plan has come into operation. He also submits that as per the provisions of the Tamil Nadu District Municipalities Act when owner shows a portion of the property for streets, he is bound to follow the same as per the plan only when he decides to sell the property or otherwise transfer the properties or he attempts to sell it by way of sites for construction of buildings. Here, the original owner himself has not plotted out the property and sold as per the sanctioned plan and therefore, as a person inherited from the original owner the petitioner is certainly entitled to contend that the public purpose does not exist as on date. 5.On the other hand, the learned counsel for the second respondent Municipality would reiterate the stand of the Municipality in the counter affidavit that when a portion is shown as public street in a sanctioned plan it was the duty of the applicant to provide those portions and having gifted the property by way of gift as per the sanctioned plan which is earmarked for public purpose it is not open to the applicant to encroach upon those properties and in the event of encroachment such owner is an encroacher who do not require any prior notice as per law. 6.Heard the learned senior counsel for the petitioner as well the learned counsel for the respondents and perused the materials available on record. 7.It is seen that the original owner has in fact made an application for the purpose of approval of lay-out and the Deputy Director of Town and Country Planning in his order dated 10.12.1974 has communicated to the second respondent Municipality https://hcservices.ecourts.gov.in/hcservices/ the approved plan for the purpose of making 47 plots. The said order was subject to various conditions including that the sites and streets should be suitably demarcated in accordance with the approved lay-out plan and the provisions must be made for metallizing roads, making provisions for sewerage, drainage and lighting etc and the same must be to the satisfaction of the authority as per the requirements of Sections 175 and 179 of the District Municipalities Act. It is also stated in the said sanction that a 30 feet road portion which is shown in the plan should also be left out and no construction should be put up unless the conditions are complied with. It is also not in dispute that the second respondent Municipality in the meeting in 1975 has approved the sanction of lay-out granted by the Deputy Director, of course, subject to the various conditions imposed by the Deputy Director by order dated 10.12.1974. In the representation dated 3.8.2002 the petitioner stated himself to be the legal heir having inherited the portion of the property from the original owner has informed the respondents that neither the original owner nor the grand-mother of the petitioner have taken any steps for the purpose of implementing the sanctioned plan and therefore no steps have been taken in forming of 30 feet road and no portion of the property has been gifted away to the second respondent. It is also stated in the representation that in the settlement proceedings also when the Government attempted to cancel the patta issued in respect of the said property ultimately in a writ petition this Court has held that the predecessor-in-title is entitled for patta and therefore, the property presumes to be the private property of the petitioner and his predecessors and in such circumstances, he has made the abovesaid representation dated 3.8.2002 stating that the petitioner should be permitted to put up construction irrespective of the showing of the portion as street in the year 1974. It is pertinent to state that in fact the said representation of the petitioner has been referred to by the second respondent in the impugned order. However, the impugned order proceeds on the basis that once original owner accorded sanction by the Deputy Director with certain conditions and thereafter the second respondent being the public authority has passed resolution on 10.1.1975, it should be presumed that the portions which are left out for public purposes are deemed to be the property of the second respondent and therefore, the petitioner being the encroacher is not entitled for any notice before proceeding to demolish. It is not in dispute that the original owner has obtained the lay-out sanction on 25.10.1974 and it is also not the case of the 2nd respondent municipality that the portions which are earmarked for public purpose like streets etc have been gifted away by the original owner to the second respondent and from 1974 onwards the Municipality has not passed any orders except the impugned order passed on 17.8.2002. https://hcservices.ecourts.gov.in/hcservices/ 8.Section 49 of the Tamil Nadu Town and Country Planning Act, 1971 provides for application for permission for development of the property by way of lay out. Section 49 is extracted hereunder: "49.Application for permission.-(1) Except as otherwise provided by rules made in this behalf, any person not being any State Government or the Central Government or any local authority intending to carry out any development on any land or building on or after the date of the publication of the resolution under sub-section(2) of section 19 or of the notice in the Tamil Nadu Government Gazette under section 26, shall make an application in writing to the appropriate planning authority for permission in such form and containing such particulars and accompanied by such documents as may be prescribed. (2) The appropriate planning authority shall, in deciding whether to grant or refuse such permission, have regard to the following matters, namely:- (a) the purpose for which the permission is required; (b) the suitability of the place for such purpose; (c) the future development and maintenance of the planning area. (3) When the appropriate planning authority refuses to grant a permission to any person, it shall record in writing the reasons for such refusal and furnish to that person, on demand, a brief statement of the same." 9.Section 50 speaks about duration of permission. It is made clear that every permission given for development of the property under Section 49 shall remain in force for a period of three years from the date of such permission. However, it is open to the applicant who is the owner of the property to make necessary application after the expiry of the period or for any fresh permission. Section 50 is extracted hereunder: "50.Duration of permission.- Every permission for development granted under section 49 shall remain in force for a period of three years from the date of such permission: https://hcservices.ecourts.gov.in/hcservices/ Provided that the appropriate planning authority may, on application made in this behalf before the expiry of the aforesaid period, extend such period for such time as it may think proper; but such extended period shall, in no case, exceed three years: Provided further that any expiry of permission shall not bar any subsequent application for fresh permission under this Act." By applying the said provisions, it is clear that after 1974 the predecessor-in-title of the petitioner has not taken steps for the purpose of proceeding with the plan or the second respondent has also not insisted the predecessor-in-title or the petitioner to gift away the portions earmarked for public purpose. By applying Section 50 it is only natural that the fate of the plan given by the Director comes to an end in the year 1977 itself. Whileso, there is no presumption about the existence of the sanctioned plan itself. In such circumstances, the question of allocation of portion for the public purpose does not arise. 10.The District Municipalities Act, under Section 175 imposes on the owner an obligation to make provision for streets when disposing of the land in the form of building sites. The said provision makes it clear that in case where the owner of any land either utilises, sells, leases or otherwise disposes of such land or any portion or portions of the same as sites for the construction of buildings, he shall preserve the portion for streets or roads etc. Section 175 of the District Municipalities Act is extracted hereunder: "175.Owner's obligation to make a street when disposing of land as building sites.-If the owner of any land utilizes, sells, leases or otherwise disposes of such land or any portion or portions of the same as sites for the construction of buildings, he shall, save in such cases as the site or sites may abut on an existing public or private street, lay down and make a street or streets or road or roads giving access to the site or sites and connecting with an existing public or private street." 11.Section 176 of the Act while speaking about the formation of new private streets, under sub-section (5) states that no person shall make or lay out any new private street without or otherwise than in conformity with the orders of the council. https://hcservices.ecourts.gov.in/hcservices/ 12.There is one other Section, namely, section 177. Section 177 also provides a procedure to be followed where alteration or demolition of street is made in breach of section 176. Section 177 is extracted hereunder: "177. Alteration or demolition of street made in breach of section 176-(1) If any person makes or lays out any street referred to in section 176 without or otherwise than in conformity with the orders of the council, the (executive authority) may, whether or not the offender be prosecuted under this Act, by notice- (a) require the offender to show sufficient cause, by a written statement signed by him and sent to the (executive authority) on or before such day as may be specified in the notice, why such street should not be altered to the satisfaction of the (executive authority) or if such alteration be impracticable, why such street should not be demolished, or (b) require the offender to appear before the (executive authority) either personally or by a duly authorized agent on such day and at such time and place as may be specified in the notice, and show cause as aforesaid. (2) If any person on whom such notice is served fails to show sufficient cause to the satisfaction of the (executive authority) why such street should not be so altered or demolished, the (executive authority) may pass an order directing the alteration or demolition of such street." It is made clear in the said section, that in such cases the executive authority has to give show cause notice to the owner to explain as to why he is proceeding to demolish the portion allotted for street purpose and after conducting enquiry, by directing him to appear before him, has to pass final orders. 13.Therefore, looking at any angle, either under the Tamil Nadu Town and Country Planning Act or under the Tamil Nadu District Municipalities Act, there is no difficulty to come to the conclusion that on the date of passing of the impugned order there was no sanctioned plan in existence at all. Even if it is presumed that such sanctioned plan has been obtained by the https://hcservices.ecourts.gov.in/hcservices/ original owner in the year 1974, by applying section 177 of the Tamil Nadu District Municipalities Act, certainly the petitioner being the successor in title in respect of the property in S.No.313/1 is entitled for a notice to be issued. In such circumstances, the impugned order of the 2nd respondent municipality without even giving a notice for coming to the conclusion as if the petitioner is an encroacher is not acceptable. 14.In view of the same, the writ petition is allowed. The impugned order is set aside. It is made clear that this does not prevent the authority concerned to take appropriate action in accordance with law. No costs. Sal Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar To 1.The Director of Town and Country Planning Anna Salai, Chennai 600 006 2.The Commissioner Ramanathapuram Municipality Ramanathapuram + 1 cc to M/s. P. S. Jayakumar, Advocate SR No. 2871 + 1 cc to the Government Pleader, SR No.2274 W.P.NO.40577/2002 AKR(CO) SR/1.2.2008 https://hcservices.ecourts.gov.in/hcservices/