L.E.Elango v. The Secretary

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 02.03.2023

CORAM

THE HONOURABLE MR.JUSTICE N.SATHISH KUMAR L.E.Elango .. Petitioner

Versus

1.The Secretary Housing and Urban Development Department Fort St.George, Chennai - 600 015 2.The Director of Town and Country Planning Office of the Directorate of Town and Country Planning Second, Third and Fourth Floor C&E Market Road Koyambedu Chennai - 600 107 3.The Member Secretary Erode Town and Country Planning Authority Chennimalai Road Opposite to Government I.T.I Erode - 638 009 .. Respondents Prayer: Writ Petition filed under Section 226 of the Constitution of India to issue a Writ of Mandamus, directing the respondents to declare that the Punjailakkapuram Village, Moddakkurichi Taluk, Erode District forming part of Punjailakkapuram Detailed Development Plan No.6 to have lapsed in view o Section 38 of the Tamil Nadu Town and Country Planning Act, 1972. Page 1 / 8

For Petitioners : Mr.C.Ramaraj For Respondents : Mr.V.Nanmaran Additional Government Pleader

ORDER

The Writ Petition has been filed seeking to direct the respondents to declare that the Punjailakkapuram Village, Moddakkurichi Taluk, Erode District forming part of Punjailakkapuram Detailed Development Plan No.6 to have lapsed in view o Section 38 of the Tamil Nadu Town and Country Planning Act, 1972. 2.

It is the contention of the writ petitioners that 'C3-C3' 40 feet road scheme was announced by the State to Punjailakkapuram Village which was approved by the third respondent vide proceedings in R.O.C.No.76/2005/ELPA, under Section 29 of the Tamil Nadu Town and Country Planning Act, 1971, numbered as Map Nos.4 and 5 under Punjailakkapuram Detailed Development Plan No.6, the lands have not been acquired till date and remains in the petitioners' possession and enjoyment. Hence, it his contention that as per Section 37 of Tamil Nadu Town and Country Planning Act, 1971, the planning authority devise any plan at the disposal of any private person required for any purpose for detailed development plan, same can be acquired by the State Government by invoking the provision of the Land Acquisition Act, 1894. Whereas, Section 38 of the said Act Page 2 / 8

contemplates, if such acquisition is not made within a period of three years from the date of publication of the detailed development plan, the land will be deemed to have been released from such reservation from the detailed development plan. Hence, according to him, no such acquisition has been made within a period of three years, hence, the writ petition.

3. Heard, Mr.C.Ramaraj, learned counsel appearing for the petitioner and Mr.V.Nanmaran, learned Additional Government Pleader appearing for the respondents.

4. The main issue that has been urged before this Court is that the proceedings in R.O.C.No.76/2005/ELPA, under Section 29 of the Tamil Nadu Town and Country Planning Act, 1971, has lapsed as per Section 38 of the Tamil Nadu Town and Country Planning Act, since the land has not been acquired within a period of three years from the date of approval vide proceedings in R.O.C.No.76/2005/ELPA.

5. It is not necessary for this Court to dwell much on the entire allegation in Page 3 / 8

the Writ Petition, since for the very same detailed development scheme, a Division Bench of this Court in W.A (MD) No.485 of 2020 has held that the scheme had lapsed by virtue of Section 38 of the Tamil Nadu Town and Country Planning Act. The relevant portions in the judgment are extracted hereunder :- "11. As rightly pointed out by the learned counsel appearing for the respondents/writ petitioners that the counter affidavit proceeds on the merits of the claim and in no way deal with deemed lapse and in the considered opinion of this Court, the learned Judge, on correct appreciation of facts and by applying the legal position as enumerated in the above said judgment, allowed the writ petition. This Court, on going through the reasons assigned in the impugned order, is of the considered view that there is no infirmity or error apparent on the face of the record for the reason assigned by the learned Single Judge for allowing the writ petition and finds that the writ appeal lacks merits.

12. It is also brought to the knowledge of this Court that the writ appeal filed by the official respondents in WA(MD) No.340 of 2020, against the order dated 27.02.2017 in W.P.(MD) No.14456 of 2014 was also dismissed on 02.03.2020."

6. This Court has consistently held that if the land has not been acquired Page 4 / 8

within a period of three years from the date of publishing the detailed development plan in the Government Order, the concerned lands shall be deemed to be released from such reservation. It will be beneficial to provide the details of the cases, wherein this Court had reached such a conclusion :

1. M.Amsavalli v. Director of Town and Country Planning reported in (2017) 2 CWC 418.

2. RM.Shanmuganathan v. Director of Town and Country Planning reported in (2018) 2 CWC 20.

3. W.P.(MD) No.5652 of 2019 (LKS Mohammed Meera Mohaideen v. Director of Town and Country Planning)

4. W.A.(MD) No.485 of 2020 (The Director of Town and Country Planning and another v. Muthu and others) and

5. W.P.(MD) No.166 of 2021 (Nagendran v. The Director of Town and Country Planning).

Section 38 of the Tamilnadu Town and Country Planning Act reads as follows :

38. Release of land.- If within three years from the date of the publication of the notice in the Tamil Nadu Government Gazette under section 26 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 Page 5 / 8

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

7. In the present case, the detailed development plan was notified under Section 37 of the Act in the year 1992. However, the respondents failed to take any steps to acquire the land and therefore, by operation of Section 38, the reservation is released from the detailed plan.

8. It is made clear that mere releasing of the lands, as per Section 38 will not bar the authorities to pass orders strictly in terms of the Rules. The lapse under Section 38 will not affect the Rule 4[5] of Tamil Nadu Regularization of Unapproved Layouts and Plot Rules, 2017.

9. However, it is admitted case that the land has not been acquired within a period of three years. In such view of the matter, as per Section 38 of the Tamilnadu Town and Country Planning Act, the petitioner's land shall be released from the development plan. It is also made clear that in future, if the Government intends to acquire the land for any purpose, this order will not be a bar for the Government in view of the provision of Land Acquisition Act. Similarly, any Page 6 / 8

application is filed or pending for regularization of unapproved layout, such application shall be dealt as per Tamilnadu Town and Country Planning Act, 1971, on its own merits, strictly in terms of the Rules.

10. Accordingly, this writ petition is allowed. No costs. 02.03.2023 Index : Yes/No Internet : Yes/No Speaking Order : Yes/No dhk N. SATHISH KUMAR, J.

Page 7 / 8

dhk To 1.The Secretary Housing and Urban Development Department Fort St.George, Chennai - 600 015 2.The Director of Town and Country Planning Office of the Directorate of Town and Country Planning Second, Third and Fourth Floor C&E Market Road Koyambedu Chennai - 600 107 3.The Member Secretary Erode Town and Country Planning Authority Chennimalai Road Opposite to Government I.T.I Erode - 638 009 Order in:

02.03.2023 Page 8 / 8