[2010] 11 S.C.R. 1

PILLAYAR P.KV.K.N. TRUST THRU RAMANATHAN v.

KARPAGA N.N.U.S. REP. BY SECRETARY & ORS.

(Civil Appeal Nos. 7305-7306 of 2010)

SEPTEMBER 1, 2010

[V.S. SIRPURKAR AND CYRIAC JOSEPH, JJ.]

Urban Development - Town planning - Trust acquiring~ certain land - Dividing of the land into plots - Approval of layout plan for the land - Trust selling off the plots except forty C Plots - On revalidation of the plan, the forty plots shown as reserved for public purpose - A subsequent layout plan, which cancelled the previous plan, demarcated the forty plots as residential area - Denial to make construction on two of the forty plots by Municipal Corporation on the ground that the o plots were reserved for public purpose - Later in subsequent plan the forty plots shown as reserved for public purpose - The same being questioned, the State de-reserved the area earmarked for public purpose - Order of de-reservation setaside by High Court - On appeal, held: Order of the High E Court is erroneous - Challenge to the order of de-reservation was not correct - Madurai City Municipal Corporation Act, 1971 - s. 250(2) - Tamil Nadu Town and Country Planning Act, 1971 - ss. 37 and 38.

Appellant-Trust acquired certain land to the extent of F 76.12 acres. It divided the same into 910 plots and prepared a layout plan for the entire extent of the land.

The plan contained provisions for roads which area was to the extent of 21 acres. This layout plan was approved by Town Panchayat in the year 1972 in P.R.No. 21172. The G Trust sold the plots, retaining 40 plots for its own use.

After merger of the Town Panchayat with the City Municipal Corporation,. the original plan (21/72) was revalidated as Plan No. 1/75 wherein the 40 plots were 1 .

A shown as reserved for school. Thereafter in 1979-80, the local Planning Authority prepared a detailed development plan which also included the lands covered by the layout plan of the Trust and the same was approved as Plan No. 12/80. In this plan the 40 plots were demarcated as B residential area. It was later informed to the Municipal

Corporation that Plan No. 1/75 was to be treated as cancelled and Plan No. 12/80 alone would be valid.

The Municipal Corporation granted approval to the C Trust for construction on one of the plots. But when the Trust sought approval for construction on other two of the plots, it was denied on the ground that the area was reserved for public purpose i.e. for school building. The denial of approval was held to be illegal by the High Court in a writ proceeding initiated by the Trust. The High Court D observed that the approval in respect of the area comprising of the 40 plots could be denied by Municipal Corporation only if the area would be classified as 'reserved for public purposes' within a period of three months from the date of the judgment. No action was E taken, as per rules, to covert the area 'reserved for public

purposes'. When the Trust applied for approval of construction on other plots, the same was again denied on the ground that the area was reserved for construction of the school. The representation of the F Trust, questioning the Plan No. 9/92, was accepted1Jy the State Government. The State, accordingly passed G.O.

Ms. No. 244 dated 23.9.1994, whereby it granted permission to de-reserve 2.5 acres of land earmarked for the school in the plan No. 1/75 and held that the same G would be residential area subject to the condition that all

the roads in the layout area were handed over to the

Municipal Corporation. The Trust had pointed out that it had already surrendered all the roads to the Panchayat by executing a gift deed.

PILLAYAR P.K.V.K.N. TRUSTTHRU RAMANATHAN v. 3

KARPAGA N.N.U.S. REP. BY SECRETARY

The order of de-reservation passed by the State A Government vide G.O. Ms. No. 244 dated 23.9.1994 was challenged. The High Court took notice of the facts that in the earlier writ petition filed by the appellant-Trustee, the High Court had not dealt with the development Plan No. 9/92, and thus the G.O. Ms. 244 dated 23.3.1994 was B illegal and vitiated by ma/afides and was in excess of powers of the Government; and that the Municipal Corporation had made a demand u/s. 250(4) of Madurai City Municipal Corporation Act from the appellant and the said demand was quashed by the High Court. Therefore, c the instant appeals were filed by the appellant-Trust.

Allowing the appeals, the Court

HELD: 1. The High Court was wrong in deducing that on the basis of the reading of the judgment passed in the D earlier writ petition, G.0.No. 244 dated 23.3.1994 was illegal, vitiated by malafides and was in excess of powers of the Government. The said order also could not be faulted as being in violation of principles of natural justice. It is true that a reference to the High Court E j:.idgment is made in the order dated 23.9.1994 which was impugned before the High Court. However, that is not the only thing on which the Government has relied upon. In fact, the judgment of the High Court was studied by the Director of Town and Country Planning, who recommended the case for de-reservation, subject to the conditions that trustees may be required to hand-over all

the roads to the Municipal Corporation. There is no reason to doubt the correctness of this recommendation made by the Director, who was aware of the earlier position. He was aware that this layout was part of 21/72 G plan and it was duly approved by the Town Panchayat and it then continued to be so, vide plan No.12/80 to the exclusion of the plan of 1975. It is presumed that the

A Director did consult the earlier correspondence on the subject. [Paras 13 and 14] [14-B-F]

2. Even if it is presumed that the 40 plots were included under the plan of 1992, yet since the land was

8 not acquired either by agreement or by acquisition, they would be deemed to have been released from reservation.

In view of the admitted position that the land is not acquired by agreement till the date of the judgment of the High Court, the deeming clause as provided u/s. 38 of Tamil Nadu Town and Country Planning Act, 1971 would C certainly come into force and, therefore, the concerned

land would certainly be deemed to have been released. [Paras 14 and 15) [15-A-C]

Raju S. Jethmalani and Ors. vs. State of Maharashtra 0 and Ors. 2005(11) SCC 222; Bangalore Medical Trust vs.

B. S. Muddappa and Ors.1991 (4) SCC 54; Balakrishna H.

Sawant and Ors. vs. Sangli Miraj and Kupwad City Municipal Corporation and Ors. 2005 (3) SCC 61, distinguished.

3. Reliance on Section 250(2) of Madurai City Municipal Corporation Act, 1971 by the High Court was completely uncalled for in the instant controversy. In the instant case, the Writ Petition was filed before the High Court challenging the G.O.Ms. 244 dated 23.9.1994. In fact, in the three questions which the High Court had posed, F Section 250 did not find place. Section 250 speaks about the obligation on the part of the owner to make a street while disposing of the lands as building sites. Subsection (2) on which a heavy reliance was placed by the High Court, speaks about the owner's liability to reserve G 10% of the lay-out for the common purpose in addition to the area provided for laying out streets. It is nobody's case that the area of the 40 plots, in all, comes to 10% of the total area besides the area which was reserved for the streets. The High Court completely ignored the fact that H

PILLAYAR P.K.V.K.N. TRUST THRU RAMANATHAN v. 5

KARPAGA N.N.U.S. REP. BY SECRETARY

the appellant-trust had already parted with more than 21 A acres of its land while getting the approval from the Town Panchayat for the layout. There is clear correspondence on the record to the effect that the appellant-Trust had not only parted with 21 acres, but had also effected a gift deed in respect of that land. It is nobody's case and indeed the B High Court has also not found that the 40 plots would be the aforementioned 10% of the total lay-out area. There is absolutely no basis for the High Court to invite the applicability of Section 250(2) by making reference to 10% of the area. Therefore, the factual background, on which C the provision is tried to be made applicable, itself, is not established and the finding to that effect is incorrect. The question as regards applicability of s. 250 had been decided by High Court in the writ petition filed by the Trust, and as such there was no question of invoking 0 Section 250. This decision was also affirmed in appeal by the High Court. [Paras 18 and 19] [18-D-H; 19-A-E]

4. The High Court has also erroneously compared the provisions of Section 37 and 38 of the Tamil Nadu Town and Country Planning Act and Section 250 of the E Madurai Corporation Act. There is no question of any such comparison. There was no necessity to consider as to whether Section 250 of the Madurai Corporation Act repealed the provisions of Tamil Nadu Town and Country Planning Act, 1971 for the simple reason that such F question could never have fallen for consideration.

Section 250 was not applicable to the controversy at all.

It operates into an entirely different field and the factual basis for inviting that Section was also not available in the circumstances of the instant case. [Para 20] [19-F-H] G

5. It cannot be contemplated that once the land, even if it was reserved for public purpose likconstruction of school in the plan of 1992 and got released, because it

A was not acquired for more than three years in terms of Section 38 of Tamil Nadu Town and Country Planning Act, could be then taken away from the owner on the plea

u/s. 250 of the Madurai Corporation Act. [Para 21] [20-A- B] .

6. The High Court went on to record its comments on the judgment of the High Court passed in the earlier writ petition which was filed by the Trust. The original writ petitioner in the instant case was a party to that writ petition and to the judgment whereby specific permission C was granted for the construction in plot Nos. 276 and 269 which was part of the 40 plots. [Para 23] [20-G]

7. The High Court gave the direction that the plots covered in LP/MR 1n5 cannot be used for any purpose D other than public purpose mentioned therein with the exception of the plot Nos. 276 and 369. This was a completely incorrect direction particularly because way back in 1982, plan No.1/75 was treated as cancelled and th.ere was no revival of that plan. Morever, respondent E No.1 has also filed a suit in the Court of Additional District Munsif, in his capacity as a resident of Karpaga Nagar Colony, wherein he had sought for an injunction restraining the Trust from selling or using the property for any purpose other than the purpose for which it was F reserved in LP MR 1/75. Therefore, the judgment of the High Court cannot be affirmed. The Writ Petition filed by the respondent is directed to be dismissed with costs of Rs.50,000/-. [Paras 25, 26 and 27] [21-D-H]

Case Law Reference:

2005 (11) sec 222

1991 (4) sec 54

2005 (3) sec 61

distinguished.

distinguished.

distinguished.

Para 16

Para 16

Para 16

PILLAYAR P.K.V.K.N. TRUST THRU RAMANATHAN v. 7

KARPAGA N.N.U.S. REP. BY SECRETARY

CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 7305-7306 of 2010.

From the Judgment & Order dated 27.4.2007 of the High Court of Judicature at Madras in W.P. No. 5051 & 19015 of 1996.

K. Ramamoorthy, N. Shoba, Sriram J. Thalapathy for ti1e Appellant.

Dayan Krishnan, Gautam Narayan, Nikhil Menon, Nikhil Nayyar, S. Thananjayan, T. Harish Kumar for the Respondents. c

The Judgment of the Court was delivered by

V.S. SIRPURKAR, J. 1. Leave granted ..

2. The appellant-a religious Trust challenges the judgment D of the Division Bench of the High Court whereby the High Court allowed the Writ Petition filed by the respondent No.1 herein.

The respondent No.1 claims to be the representative body of the residents of the area called Karpaga Nagar. The High Court while allowing the Writ Petition issued the following direction:

"We allow the writ petitions and direct that the plots covered in LP/MR 1/75 cannot be used for any purpose other than the public purposes mentioned in such LP/MR 1/75."

The High Court, however, did not include two plots, namely, plot F Nos. 276 and 369, meaning thereby that those plots could be used for any other purpose.

3. Some factual background would be necessary before

w~_approach the controversy. The appellant is a Trust formed in the year 1924 to look after religious and secular activities of G Pillayarpatti Koil situated at Pillayarpatti and for the welfare of Nagarathar community. The Trust acquired properties in Tallakulam village in Madurai District including lands in S. No. 92, 94, 120 to 126, 130 to 133, 176/1 and 178. These H

A properties were sub-divided into 910 plots and they are named as Karpaga Nagar. The Trust thereafter prepared a detailed layout plan for the entire extent of 76.12 acres in all, in which the provision was made for 60 feet, 50 feet and 40 feet roads.

The road area was to the extent of about 21 acres. This layout B plan was submitted to Tallakulam Town Panchayat which was the appropriate authority in the year 1972. This layout plan was approved by Tallakulani Town Panchayat vide its order dated 19.5.1972 in P.R. No. 21 of 1972 under Rule 3 of the Tamil Nadu Panchayats Building Rules, 1970. Pursuant thereto, C majority of the plots were sold by the Trust retaining about 40

plots for its use. The said Tallakulam Town Panchayat along with other Town Panchayats merged with Madurai City Municipal Corporation on 30.1.1974 and, therefore, the laws applicable to Madurai Corporation were made applicable to Tallakulam.

0 The Madurai Corporation insisted to rvalidate the plan. The Trust again applied for revalidation of the original plan in 21/

72. Plan No.1/75 showed 40 plots as reerved for school. The appellants herein claimed that as per the savings clause the Corporation was bound by all rights and liabilities created by the erstwhile Town Panchayat before the date of merger.

4. Thereafter, in the year 1979-80, the Local Planning Authority of Madurai prepared a detailed development plan which also included the lands covered by the appellant's layout

plan. This detailed development plan was approved as DTP F (MR) 12/80. In this plan the area relating to the 40 plots which were retained by the appellant Trust, was demarcated and shown as residential area. Finding that they were contrary to plan No.1 of 75, clarification was sought and it is claimed that the Deputy Director, Regional Town & Country Planning, by his G letter ROC No. 4589/82 dated 30.8.1982 informed the Corporation of Madurai that plan No.1/75 may be treated as cancelled and plan No.12/80 alone would be valid.

5. Thereafter when the Trust proposed to make some constructions in plot No.342, Madurai Corporation granted its H

PILLAYAR P.K.V.K.N. TRUSTTHRU RAMANATHAN v. 9

KARPAGAN.N.U.S. REP. BY SECRETARY [VS. SIRPURKAR, J.]

approval by order No. K.3/PR 533/82. However, when the fresh application was submitted for putting up construction in plot No. 276 and 369, the Corporation by its order dated 16.12.1986, rejected the application on the ground that this area was reserved for public purpose of putting up school building.

Thereafter, the appellant filed a Writ Petition No. 1565 of 1987 for quashing the order of rejection and for a direction to the Madurai Corporation for grant of approval for putting up the construction. In this, the plea was taken by the Corporation that the detailed development plan bearing No.12/80 was sought

to be modified and hence the plan could not be approved. The C High Court by its order dated 21.11.1991 allowed this petition and held that the rejection of the plan was illegal. The High Court restored the applications in respect of plot Nos. 276 and 369 and directed Madurai Corporation to pass orders expeditiously. It was further stated that if the orders were not 0 passed within three months of the said date, the application for sanction of construction would be deemed to have been granted. It was, however, made clear by the High Court that the /"'applications could be rejected only if this area comprising of

40 plots was in the meantime classified as 'reserved for the public purposes' in the detailed development plan.

6. It seems nothing was done for inclusion of this area into

the detailed development plan as per the procedure laid down under Section 25, 27, 29 and 33 of the Tamil Nadu Town & Country Planning Act, 1971 read with Rule 13,14 and 16 of the Preparation, Publication and Sanction of Detailed.

Development Plan Rules. The appellant thereafter applied for approval of plan in respect of four other plots bearing No.326, 331, 336 and 340 of the layout plan. However, by its order dated 27.4.1993, the Corporation rejected the said application on the G ground that the plots were forming part of the area reserved for construction of a school and hence the application for construction could not be allowed. Quoting all these facts, the appellant made a representation to the Director, Town and Country Planning No.807 Annasalai, Madras dated 15.6.1993 H

A and pointed out that the stance taken by the Corporation was not correct and that this new plan No. 9 cf 92 would be completely illegal and against law. The appellant reminded the concerned authority that the plans were approved in the year 1972 itself by Tallakulam Town Panchayat by its order dated B 19.5.1972 and the rights of the respective parties had been crystallized at that time itself and it would not be just to disturb it after a lapse of 20 years by introducing new modifications in the detailed development plan and, therefore, the stand taken by the Corporation that the said area was reserved for school C purpose, was clearly in contravention of plan 12/80. In that' representation the Trust gave the whole history which has been stated above by us. It was pointed out that the whole area was reserved for residential purpose under the ::ipproved plan and on that strength, several plots were sold to several persons and

0 they would also be affected if the modified plan No. 9/92 is approved as it is. A prayer, therefore, was made that this petition to the proposed detailed plan No. 9 of 92 was liable to be considered in favour of the Trust on the basis of the detailed development plan No. 12 of 80, so that the Trust could utilize 40 plots for constructions. It seems that this representation was E accepted by the State Government which passed G.O.Ms.

No.244 dated 23.9.1994. In this order it was suggested that the Government accepted the recommendation by the Director, Town and Country Planning and the permission was accorded to de-reserve 2.5 acres of land earmarked for school in the F approved layout LP/MR 1/75 in T.S. No.92/94 etc. and the same

would be deemed to be residential area in Madurai Corporation subject to the condition that all the roads in the layout area should be handed over to the Madurai Corporatior by Pillayarpatti Karpaga Vinayagar Koil Nagarthar Trust.

7. It appears that immediately after this order was passed, the appellant Trust pointed out that it had already surrendered before Tallakulam Panchayat all the roads in the Karpaga Nagar layout by executing a gift deed dated 11.5.1972. A copy of the H aforesaid gift deed was also sent by the Trust. It was thereafter

PILLAYAR PK.V.K.N. TRUSTTHRU RAMANATHAN v. 11

KARPAGAN.N.U.S. REP BY SECRETARY [V.S. SIRPURKAR, J.]

informed by the Trustee on 28.2.1995 that the aforementioned A gift deed was also registered and the roads were handed over to the Madurai Corporation.

8. It seems that this order of de-reservation passed by the State Government came to be challenged before the Madras High Court and by the impugned judgment, the Madras High Court set aside that order and directed that reserved area shown in the earlier plan LP/MR 1/75 cannot be used for any other purpose other than public purpose. The High Court, however, made an exception in case plots 276 and 369, perhaps because the earlier orders of the High Court were C finalized in Writ Petition 1565 of 1987 to which reference has already been made earlier.

9. It is this judgment which has been challenged before us by the appellant Trust. Shri K. Ramamoorthy, learned Senior D Counsel appearing on behalf of the appellant Trust, pointed out the earlier history starting right from 1972 and pointed out that out of that total 76.12 acres owned by the Trust, the Trust had already parted with 21.62 acres of land which was reserved for public purpose by way of a gift deed dated 11.5.1972 which was later reiterated in favour of the Corporation also. The learned Senior Counsel pointed out that it is only out of the remaining land that the Trust created as many as 832 plots out of which 40 plots were retained by the Trust. He then pointed out that after the whole plan was approved by the Tallakulam Town Panchayat on the basis of the Tamil Nadu District Municipalities Act, 1920 and Tamil Nadu Panchayat Act, 1958 as also under TN Panchayat Building Rules, 1970 framed by

the Government by virtue of Section 178 of the Madras Panchayat Act, 1958. He then pointed out that the petitioners G were the residents of the same plots and they had purchased the plots from the Trust and they were residing on the same plots. He also pointed out that on the merger (by taking recourse to Section 3 of Madras Corporation Act) of Tallakulam Panchayat in Madurai City Municipal Corporation on H

A 30.1.197 4, the matter went into the regime of the corporation.

It was further pointed out that in the year 1975, the Trust applied for granting permission for layout which in fact was already granted by the Town Panchayat. The learned Senior Counsel further pointed out that in the year 1979-80, detailed draft plan B was prepared by Madurai Local Planning Authority under the Town & Country Planning Act, 1971 wherein the plots retained by the temple were shown as residential area. He also invited our attention to the communication dated 30.8.1982 on the consent by the Deputy Director of Town Planning to c Commissioner, Municipal Corporation, Madurai to the effect that the earlier lay out plan bearing No. 1 of 75 stood cancelled and the Commissioner was directed to proceed as per the approved scheme plan bearing No.12 of 80 wherein 40 plots were earmarked as residential area. The learned Senior D Counsel also invited our attention to the earlier Writ Petition

No.1565 of 1987 dated 21.11.1991. The learned Senior Counsel invited our attention to the further representations made by the Trust to the Government and the ultimate order passed by the Government. The learned Senior Counsel E contended in this backdrop that it was absolutely incorrect on the part of the High Court to have revived the earlier plan of

1975. Learned Senior Counsel also pointed out that there was no locus standi to the respondents (petitioners before the High Court) as in fact they had themselves granted permission in respect of plot No.342, which is one of the 40 plots reserved F for the Trust. It was further pointed that that for all these years nothing has happened nor has the area been acquired by the government and, therefore, in fact the whole area has become de-reserved as per Section 38 of the Town Planning Act.

10. As against this, Shri Dayan Krishnan, learned Counsel appearing on behalf of the original writ petitioners and the respondents herein contended that the very look of the impugned order dated 23.9.1994 would suggest that it has been passed under a misnomer and is a result of H misunderstanding the High Court's judgment in W.P. No.1565/

PILLAYAR PK.VK.N. TRUSTTHRU RAMANATHAN v. 13

KARPAGAN.N.U.S. REP BY SECRETARY [VS. SIRPURKAR, J.]

87. According to the learned Counsel, the order gives an A impression as if there is a direction contained in that judgment to de-reserve the concerned area of 40 plots. According to the learned Counsel, such direction was never given by the High Court. He further pointed out that in the absence of the amenities like school etc., the citizens would suffer. He also B pointed out that no basic amenities like roads etc. were provided though the Corporation was collecting road costs from the plot owners as and when they applied for permission for construction.

11. It is on these rival claims that we have to .see as to C whether the High Court was justified in allowing the petition as it did. The High Court formulated the following points:

(1)

(2)

(3)

Whether the challenged order G.O.Ms.244 dated 23.9.94 was vitiated by ma/a tides and in excess D of the powers of the first respondent in violation of principles of natural justice?

Whether the modification issued under Section 27 of the Town and Country Planning Act reserving E disputed 40 plots for the public purpose under detailed development plan had become null and void in the absence of any final orders passed within three years from the date of publication under Section 38 of the Town and Planning Act?

What is the effect of the approval of the earlier plan P.R. No.21 of 72?

12. It also took notice of the fact that when Madurai Corporation had demanded Rs.80,69,784/- under Section 250 G

(4) of Madurai City Municipal Corporation Act from the present appellant, the said demand notice was quashed as per order in W.P. No.8962of1988. The High Court also made reference to the order passed in W.P. No.1565 of 1987 and found that in that judgment the High Court had not dealt with the H

A development plan No. 9 of 92. The High Court then came to the conclusion that G.O.Ms. 244 dated 23.3.1994 was illegal, vitiated by ma/a tides and was in excess of powers of the Government.

13. In our opinion, this deduction on the part of the High Court on the basis of the reading of the judgment in W.P.

No.1565 of 1987 is wholly incorrect. There is nothing to suggest that the G.O.Ms. 244 was hit by ma/a tides or was in excess of the power of the Government. This finding has no basis. We also do not understand as to how the said order could be C faulted as being in violation of principles of natural justice. It is

absolutely true that a reference to the High Court judgment is made in the impugned order dated 23.9.1994. However, that is not the only thing on which the 'Government has relied upon.

In fact, the judgment of the High Court was studied by the D Director of Town and Country Planning who recommended the case for de-reservation subject to the conditions that trustees may be required to hand over all the roads in Madurai Corporation. There is no reason for us to doubt the correctness of this recommendation made by the Director, Town & Country E Planning, who was aware of the earlier position. He was aware that this layout was part of 9/72 plan and it was duly approved by the Tallakulam Town Panchayat and it then continued to be so vide plan No.12/80 to the exclusion of the plan of 1975.

14. We also presume that the Director did consult the earlier correspondence on the subject and, therefore, the High Court was completely in error in deducing that the order was in excess of the power of the Government or was hit by ma/a tides or was in violation of the principles of natural justice. In our opinion, the deductions reached by the High Court in G paragraph 11.5 are baseless. In the latter part of its judgment, the High Court has taken stock of the whole Act right up to Section 38. We have nothing to say about it excepting that the reference to all the provisions of the Act was no~ at all necessary. The High Court then referred to the argument made H

PILLAYAR PKV.KN. TRUSTTHRU RAMANATHAN v. 15

KARPAGAN.N.U.S. REP. BY SECRETARY [VS. SIRPURKAR, J.]

that admittedly 40 plots were private land and, therefore, even if it is presumed that it was included under the plan of 1992, yet since the land was not acquired either by agreement or by acquisition, they would be demed to have been released from reservation.

15. The High Court has undoubtedly posed this question up to paragraph 16 but has chosen not to answer it till last. We, therefore, put the same question to the Counsel for the respondent as also to the Counsel for the Government and both the Counsel fairly conceded that the land is still not acquired.

16. Section 38 of The Tamil Nadu Town & Country Planning Act, 1971 runs as under:-

38.

Release of land:- If within three years from the date of the publication of the notice in the Tamil Nadu Government Gazette under section2 6 or section 27- (a) no declaration as provided in subsection (2) of section 37 is published in respect of any land reserved, allotted or designated for any purpose specified in a regional plan, master plan, detailed development plan or new town development plan covered by such notice; or

(b) such land is not acquired by agreement,

such land shall be deemed to be released from F such reservation, allotment or designation.

In view of the admitted position that the land is not acquired by agreement till the date of the judgment of the High Court, the deeming clause would certainly come into force and, therefore, the concerned land would certainly be deemed t9 G have been released. The High Court has also referred to thi:!:, reported decision in Raju S. Jethmalani & Ors. Vs. State of Maharashtra & Ors. [2005 (11) SCC 222], where this Court has clearly held that the owner of the special land cannot be prohibited from using it since it is the private property and H

16 SUPREME c6URT.4REPORTS . [201or11 s:c.R. ' ' • ;." ' ii : (, ;,: '<"" ' ' ', ' '-< ~~ f • • 'I

I ',• ). :

A G6vernniehfcannot deprive .the 'persons from usihg their private property and,:therefore; th'e ·:acquisiti6ri 1 cit the prdl)erty'is a must before ariy"su'Gh. p'erson is r'esfrained from'usihg'tHe'land1<The

High 1Courti'f'ias again'e'xtenshiely"lfeferred to' the e'arlier two decisions of this Court in Bangalore Medical TrusF\/s" B.'S.

8 f11cf,~?PP5',, ·rC![S.: [1991 (4) -~S.9 151!,?~~.~/Jl~risQ7a H.

Swa 1~! !~ , Qr's: .. V~., Sar1f!li:11Jr~(j~4p'fad'/;(f !Y. ~~'niiP?I C6rpoiation '&.Ors. [2Q05 (3) SCC 61]. However,' we do not find ny a'fi~Wer' in thse j~C:fgmeni1L Tti~',:~; p8nd-hti1id

sbedtica1lyralse1i"these .queiioD$ in vievl ofth&att-.tli~1-'the c conth?Jf pro'perty hsbnt 'tff~-r tien ~2qlred: fll'e 1refore: it

i~ cl~~_rJhaj Section 38 will GO[le in-the:'1'ay._of the:Gc)Ver{lment, and the appellant Trust could not have been stopped from using the property on the spacious ground that the said property was reserved forconstruction!of, school way.:.back:iri:tli'e year 1975

and thereafter-lri--1992. :: •1. 1 . :11, "' ,, r.

i '\i 1i,.:_JCJ(:~ -, ~.:J:··· 1 -r ")\:· :l! ... "' ,· 17.ljgwevr.-Jhe_Higl:\_C, qu_rt, seHj!ms"" toJ1~¥!3 proceeded on , the, , pa sis t:<>fi :$ectiOf!, 25_j1, qf •Thei;!v'la"durai-_City Municipal Corporation .Act, .. 19V. 1Section 250-runs as .under:- - , , ._,,..__, ,. •·~..;.-· .... , . ,,__,.

, J •• 1,

. ._.._ ,, J-·< - -.- i•I.

(1) , If the owner of any land utilizes, sells, leases or

:··.·-)1)1')-1:.u~: .· .~ ,-. 1_:.;~_.J1 , . .; n: ·· n - ·.1._j:J2 1'.. otherwise disposes of such land or any portion or

. l'' tJ ,·, cpo, rtionsJ_of the s_me_.a~_:l'ites, for thc, construction

1 1ciOf.uJlgings,!he shaltsave inst, Jcjl e<!S~_s as the site or sites may abut on an existing public or private

•. ·~'street: lyout 1and make a streetto'r streets giving ; ' access to the'site<or sites and conhettin'g with an

.'. 1 •, ' ' existing pUblic'Ot priv::ttestreetprw1 ·i 1; ; J G r• 1,' •If ;:.t. : ! \..','li~.' ·,_'

,•I ,-, / {• b1 ~~---\1'•

J;:).', ~; • _t ··--!"'q .. " t>1(2) ,. Jn regard to th13 laying.ol!_Lor IJlJlK\ng-"of any sych

,, ' ;; , i .str@eJorstreets, thep-rovls!ons 9f1 ~ptiori. 251 s_hll •.. -·, , appJy.,., s,1,1bect to-the condij()Jl~ tl?aJ the owoer, sflall

'I , rn:iit .Ci sur:n not ~XC\?E:idJng3 5PtP~! cent ?ffJhe . , ~., stirnated cost of layovUl!lPJOYmenJ~ iri Jh13 land

.51 J l?ILUAYAR PK.V.K.N. TRUST THRl; I RArv1ANP.;.ItlAN:y.::'. t1 7

KARPAGAN.N.U.S. REP. BY SECRETARY [V.S. SIRPURKAR, J.]

rnm1>isilF' and that, thepwnertshall also reserv!3,!)9tw~~§tji!}g , A tnn s1evdo10•per.cent of, theclay-outfor, the cq!l}mPJ1, Pl.lrp9e

~!'1t b~1.1ul ,. in addition io, the -area provi(jed, for, l9yi11g1c,0,4,!

!1'.Ju& .. >off •, streets. If, any oner,, contq:ivE?nes, ~8Y;"<?,~1Jh@ •o t):::.ac .conditions specif_iedi.-ab.oven ·.e , shall,; bdiat:!lt? 1 Jqr

''WO• mul.'prosecution. , , ,, ion " 3•J r'• ~,, ,, '>' •:s,, yilsqo:q a11 18 I 8!1 '(l

J• ···~-

C'.,· :~ : , )It t..· SJ t :-:1 ~~ .. "--!f.! ts 1f:.fi:in2c1

_ 1n,,0 (~) 1~ in. any ,, cs.e,, tr;, pr9isir~~9f if.\l..~-S.eft'? .. ns J 11~ and (2) have not been complied with/ fhe

r<>~·- ., r, c., CommissionEH may, -by notice, requJ; e the ,, v,,,,, , defaultingi owner, J.olayouhandim;:tkE_:i,~. tr!:!et or .c ,,, streets on such .land and ir:i such mmner and, within '' such time as may be specified in the notice'l

, (4) 1 If such.street Of7streets.arenot)aid out and made • , ; in the manner and , within U1e time specfid ii, n"t!; i§ ., ·' ~' . 1notice, the Commissioner may lay; OYt. a:ndcmaJ<e D .. , .. , • .. the street or strees, and tl; ie expemes-n<:; urred sb§!ll ,,,, j ·, .. be recovered frorri tbe defaulting QY<, n~(; : , '':'"'2

i '.<· t-. ~. ~\- • ' . •

• '··:. C.' • ::;~ • ., ; \ ... .: t ;:·.:; ,7: .:.:. ·,~~· f!U11fr ·1l.,.

1 .. , ·. (5) , The Comn:uss1oner may in li1s d,1scretion, issue the . ,. > notice referred to'Tn. su'b"..'$e'tstion'(3)C6r recove'r' tti\;~

•.. J ' ...... '...

I ~- ' 'J'.11• Ir .f'.' :_:· ._r ,· ..... ·~ "~· : ,_ ,.r;:: =F . r,, . . , expenses /eferre;~ , to Ln .~9.b.:~,, e;~\io~,/4 t to' p, r fro~

r the owners orany .. buiJd}ns or, i;; w~~(juting q, n.t~T ,, ,: . treet or. stret~ co_~:9; ered.ibu.t any. sue~ c~~rr , shallbe entitledJo. recover all reasonable e;!penses

~ .··-. _,.'_;,:;.:-,( ..,.! b ~._j b~') 1 .. 1f~1 .. -""IJl 01 ' 'u .. , . incurred by; h.i.m .o~ ajl.ter,~~Y, y.~ P, jd ~X, i~ .. ~~ \~~ F

._ ,, b ..... ?ase .n:iay b~, fy;<?fll. th,~_, d.~~l01~,~~-j'f; n, E(.r.rmers~~ 1t9

.. ". ,,,. , 'D , sub-Sect~Qn, Jl-'~.p. 'l•!l [i tft•t:; ·; L.r'.·. L, r, "-' lo

' "Relying 'on 'this SeCC3tion 9and, more: particuiarly~·sub' Sectioris (1 )'ancf(2)'.'the High"C'c5'urf was 5Hfie 'viev/that:oefdre

't~7 'usurp 1f)e 1iQ~}viti~"~~ ,, Mu'n.i~e~~,

1 ~?rpra~.ri' f?_f :~ , G layout, 10% of such land was bound to'bereserved forcommon purposes'.' The High c6[frt firstircame to'the 'conclUsio'n' tl'ial th"e Trust itseif sought the approval. of ttie 1ay6ut :pian 'from the Corporation after Tallakulam Tow'n~Panchc'.lyat 1merged with tfie Madurai Corporation. The High' Court ma8e a refefe'nce to the H

A earlier plan being P.R. No. 21/1972 approved by the Tallakulam

Town Panchayat, wherein the aforementioned 40 plots were not shown as reserved for the public purpose. It refuted the submission made by the appellant Trust to the effect that such plan which has crystallized the rights of the Trust in respect of B its property, was bound to be honoured after the Tallakulam Town Panchayat became a part of the Madurai Corporation by its merger. The High Court observed in para 19 of its judgment:-

"19. . ........ To the extent any alienation or construction had been made by virtue or Tallakulam Town Panchayat P.R. 21/1972, such acts are of course required to be protected."

18. In our opinion, the reference to Section 250 (2) was completely uncalled for in this controversy. This was a Writ D Petition for challenging the G.O.Ms. 244 dated 23.9.1994. In

fact, in the three questions which the High Court had posed, Section 250 did not find place. Section 250 speaks about the obligation on the part of owner to make a street while disposing of the lands as building sites. Sub-Section (2) on which a heavy E reliance was placed by the High Court, speaks about the owner's liability to reserve 10% of the lay-out for the common purpose in addition to the area provided for laying out streets.

It is nobody's case that the area of these 40 plots, in all, comes to 10% of the total area besides the area which was reserved F for the streets. The High Court completely ignored the fact that the appellant trust had already parted with more than 21 acres of its land while getting the approval from the Tallakulam Town Panchayat for this layout. There is clear correspondence on the record to the effect that the appellant Trust had not only parted G with 21 acres, but had also effected a gift deed in respect of that land. It is nobody's case and indeed the High Court has also not found that these 40 plots would be the aforementioned

10% of the total lay out area. There is absolutely no basis for the High Court to invite the applicability of the Section 250(2) H by making reference to 10% of the area. Therefore, the factual

PILlAYAR PK.V.K.N. TRUSTTHRU RAMANATHAN v. 19

KARPAGAN.N.U.S. REP BY SECRETARY [VS. SIRPURKAR, J.]

background, on which the provision is tried to be made A applicable, itself, is not established and the finding to that effect is incorrect.

19. In this behalf it is to be seen that earlier also this question under Section 250 had cropped up in between the Madurai Corporation and the Trust. The Madurai Corporation had sought the payment of 50% of the sum of Rs. 80,69,784/- being the total cost for laying roads in the area. The Trust had approached the High Court by way of a Writ Petition whereby

the Learned Single Judge of the Madras High Court held that C the roads shown in the lay out plan had already been handed over to the Tallakulam Town Panchayat and ultimately it was found that the roads were laid and it is only thereafter that Tallakulum Panchayat got merged with the Madurai Corporation and as such there was no question of invoking Section 250 of the Madurai City Municipal Corporation Act. This decision was D also affirmed in appeal filed before the Madras High Court. The High Court just had quoted this issue by saying that the question regarding the land to be kept apart for the common use had not fallen for consideration in that appeal. We do not think that is the position. We have already shown that this question could not have come via Section 250 which was only inapplicable to the factual situation.

20. The High Court has also erroneously gone and compared the provisions of Section 37 and 38 of the Tamil Nadu Town and Country Planning Act and Section 250 of the Madurai Corporation Act. There is no question of any such comparison. There was no necessity to consider as to whether Section 250 of the Madurai Corporation Act repealed the

provisions of Tamil Nadu Town and Country Planning Act, 1971 G for the simple reason that such question could never have fallen for consideration. We have already shown that Section 250 was not applicable to the controversy at all. It operates into an entirely different field and the factual basis for inviting that Section was also not available in the circumstances of the case.

20 SUPR~ME: COl'..IRT REPORTS

1 , [201'.tl] 11 .S:C.R.

:. L Y1fl.S.'lj:{ ;'"·,~.,:·, "? \ ~ {.1/: ··,.-·· , _/.\C :·\, '"">1fv

fii clGL21.~Wcannot b'e contemplated that; olice the land,1 even-if it Was1reserved :fb'r.lptlJbHc purpse like constructiono6f school in the plan of 1992 and got released because it was n6tacquired; for more than three years in tarms of Section 38 of Tamil Nadu fdWn (and c'bUfiff)' 1P1nRlng Ac( c'6u1a be ten t; fken away' from B tti~\owhe~~Bn' th'e' spa'Cii'.>'us tple1a under 'section 250;' of'the

rli1~Hur~Cco'rri8ra'ii?i'r1 fct: . ·~ ·" ~, '" •- · ,. ' .r, \ . .Pf)\ l..-· _rtj .2.l't-tL ' 1 L~ .• .rt t .... c\J'- 1. "\ J. t 1 1~· .... ....

L\;;::-~

t'srt 22! i Besit:les-"'afl this,· ittls clear that on ~19,5~.1972, 1 1the Tallal<:ularti Towni Pancnayat'hadapproved the plan submitted by the temple' for76:12.acres thereby 91 o plots were shown in C the' plan and' 40r:pf6ts'wereretained' and the, balance •plots

appeant0ihaVel!beeh S'old:iF-fowever,,; in the yekr 1972, whenthe'.Ta:rnil, Nad'li Ti:5wn<& CC>untry1Planr:iing Act, 1971 came into' f()foe; ras'Act'No125 ofi.1972,'the whole area became 'part lof the Madurai corpofatiol'I w.e.f. i30'.1174: It was then"liat>1eto be G seenrtf.latafterithe plfln of.1975was prepared:· that 1plan was

specificaHy •teferr.e'cts in tHe-:icdmmunication. dated 18:6:82

wheeoy the1cornmissioher,1Matiurai corporaticm1sought cl<Hifit:atidns ffom rt-ne !Deputy Directbr; Regional: Town -and: Country Pfanl1ing1fa0ol'.il me effecrol DDP on the layout in LR E 1'175 aria '6HC30.8!821' ffle=Geputf Director,· Regional• town &·

C:Ot:Jntly'Pla'nninginadrspeCific1:111y:conveyed that the approved layout plan 1 of 75 required1if1iodifications and it should be treated cancelled and that the Corporation may act as per the approved pl~~ N"o.'12i8b. This spcific 'position was completely F ignored (i:iy'the 'H(ghl; CCo.urt~ file'High Court merely went on to

retard its coit1thents on the'judgment ofthe'Madras High Court iri w.P. Nd'.156si87.'(• · · . ; , r .

. I 'L ,- ·~I c' I I

Y.. ~, ' l

' 23'. We have nothing toJsay about those comments.

However, the fact of:the matter is'-tnat the respondent here iii G andtheoriginal Writ Petitioner was a party to that•Writ<Petition

and t<:i':theudgnient whereby 'specific permission was granted foi"the-constructibn in Jjlot Nos. 276 and 269 which was partof theaforementroned 40 plotS: ?£·. ·, ..

.-- .:_;-, t,, j.4 i .. ; J •. it.-.~?"[1 H

24. Further an application was filed as WMP 3338/92 for

PILLAYAR PK.VK:N. TRl;:J.STTHRURAfl1ANATHAN v. 21

KARPAGAN.N.U.S. REP. BY SECRETARY [VS. SIRPURKAR, J.]

extension of time(.t, o tae1apR, fi9priate.de9ision in terms of the A direction of the High Court which had given three months' time.

It is specifically pgi[!ted O\IJ , that, hei~PPliation for sanction could be rej~9!, e, d nlyuo c(!SE1, th~_ qetaile_d_;~.evelopment for this area, the two plots came under the classification 'reserved for public purpose'. Even g'iving tflre~ 'rfi.dnftis; time, such step could , B

no~ e~ t~~; f!.d !r:'.-GJ~~~Ji!; c.g~!!~. "1~~;!'3Y~J>nAa.~~.nJ!.n.G'}ew of the earlier factual scenario, more particularly, because of the decision dated 30.8.82 whereby the approved plan 12/80 was

'''rei~W'ENtto' tllf.'N'o.1/75 111flio~,· h. we)Heed ngti

7d~Ynfo the pee-- 'CO\~_,,., pr'-f."\t'4 1c ';{~<· :;,'-.. 9~_ -:~, ' .. ,_,' ... ~-\r ,., '. i•' further uestion 'as .to whether tlie dcision' irfW .P.No.1565/87 .c

V;.i8t1aBeis"''6ciicata·s"'"\/eW'6t'hrWise.it is cffi~Hl-iartife stte G'6Q~?~; ihnf~ai~g11 ·~ lh1 1t~'nce'in'; pa~ir19'ttie\arcier citeci "2·3"E9;94'"il':'d" •r, i... '0"1w"·"·. 2·4·4-· - ··,\ -,.., " .. ··"~·- ·", ·. •~" '~"'"'"' ., ... . . . VI e, l:1. .

S. . . . . , , ,

~~.,,·,: ... ·, r:.in.r..-~u Jt:.o ''.,;--':", b \-. , ... ~~ '.1.··:> ·~; ·,. .. -:\ -t •. '°""

"~J

1 •

025~ The\ High court irflhei1ast, has given tt\€!'.<:lirectiot'l that the plots covered in _LP/MR 1175 cannot be used for any ~D

lr~ ri11, n_oel ·- . .,(;\\i\.·\'-,\_1 ·

.':.~\'R :-1\0~.· ?~1 ·.l-:~ 1 _ 1 c~ (''1-1 .. ~_.,,0': 1

~11tP.Pn~'~V1~~ . ~Q,.p.~,~1t1Jl1, rf ~?e rnpt1n, e~( t~7r~,1~.w\t~}~~ excepuon of theplot No~. Li? a~:d-(?9'., _I~~· oxf-P~')N~2 tti:~.-'f"~S a completely incorrect d1rect1on particularly because way back

.incl:%~?.!R!~'be:Y?.51~siJma~tj:'!!§ ... l1C.e!!d.:~!1 .... 4t~r~ was

£1.9,[eyjv<!L<?Ht!t;;.1?!?1t?ic .19vonrn1 s!dsxs1 aJi ni at.Ji st .:i E

;:)'i)p12''"5~:\ trlb•e, tt "t<)th'.}!31110'.lt bF; rl ·~9dr• .• <;?l; N ·s1erl:l 1."irl'K' l'HHIOl .,,, , .. , i,, a$t , u po . e ~.as." respon . en o.. nrern, -rpag_~ N. .oq , Nso1. 9fl, ~9or.i.. 5

,.,._1i-;1i:;(.9~ ~~01.," t' '!in ._s1u8h . ;'A"' . agar ,, a~ urii:nr . a, ram.,.rew, ese~ -u., uY . .,., .~1 .

Shania9agr11'ad'rn&i.h 'bfigl1ia1 Suit N6'.1t 1o6t861h''the{ c6Ult of Ad8i'Hb~r6i~ii1; xuR§ifca'(Nt rViaci8i'r6v51rfiifhfs::sfpcrci!Y

g~~ ~I r~, JillMfii• f 1<1Hh, Cg 0a '.Na,~·v f ,, ioy whirt~ Ii 11\? tia'.., lf ~8ght .f If> .. 9 ,11. JO !:' ,,(l pr 'trt•., O ! "'lhi?.j-"-fit .f ny fl 11.9n11>11. .rin'th1 r Of an ~IJJn~UOIT res rarrll")Q, e ru~ r?m S~ , l[l!:J 0£,..~Smg . e tropgrtftdr diW1>°uiW>settil?h~ P.Wrpoge"'ti:fr'Wllicti it'W~~

f.eefv~8:id''f.p' NiR''1??5~:·' 'luns~9r,., SHJJ '{C• Tisqqs 1::in:1u Jn"' :-; o9m saa aas sn i •:mudn n()r i>xs isi:isq<'.! vb;,;.,

:•· •1Y21.rF=dr.a11' ffiesereasonsFwe cahnoFattirm:hiefjudgmetit P

6fttl&"'rligh GoUrti lfi$ set raside:aha m'e1Writlf:>tition'filed <by the respondent is directed!to1Be-rdishii$seawithrcosts36f

Rs.50,0:JO/-. t111o:J srU , al5!Jq11b 9rl1 g11iaairnefl

K.K.T. ~~ Appeals allowed.