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Judgment
Honourable Mr. Justice K. Chandru
Both writ petitions came to be posted before this court on being specially ordered by the Hon''ble Chief Justice. The petitioners in both writ
petitions are the son and wife of one Sambandam. In these two writ petitions, the contentions raised are identical, i.e., two petitioners want to
challenge the communication, dated 02.11.2010 issued by the Special District Revenue Officer (Land Acquisition), SIPCOT - Orgadam and
Irungattukottai Expansion Schemes and seek to quash the same.
2.When the matter came up for final hearing on 31.01.2012, the counsel appearing for the SIPCOT stated that the matter cannot be heard without
the SIPCOT being made as a party as they are the requesitioning body and that they are the necessary and proper party and sought for time to get
themselves impleaded. However, this court felt that it is unnecessary to further waste the time and hence suo motu impleaded the SIPCOT as a
necessary party. Therefore, the SIPCOT represented by the Chairman and Managing Director was made as party third respondent and the cause
title stands appropriately modified. The argument of Ms.Namadha Sampath, learned Standing Counsel for SIPCOT was also heard.
By the impugned communication dated 02.11.2010, the petitioners were informed that their request for compensation in respect of the land in
Survey No. 33/2 cannot be considered as the said land was kept as an Open Space in respect of park and road to be laid in the approved layout.
The State Government by G.O. Ms. No. 141, Industries, SIPCOT, dated 14.7.2008 had stated that in respect of the approved layouts, the lands
reserved for public purpose if they were handed over to the local bodies, the compensation will have to be given only to the local bodies. When
the SIPCOT sought for clarification, the Director of Town and Country Planning in his letter dated 18.10.2010 informed them that the lands
reserved for Open Space Regulations (OSR) will have to be handed over to the local bodies by way of gift deed. For those lands which were
handed over by gift deed, the compensation need not be paid to the erstwhile land owners. Hence the request for grant of compensation cannot be
considered. Even this order came to be passed after the first petitioner moved this court with W.P. No. 16675 of 2010 and the second petitioner
moved this court with W.P. No. 16676 of 2010. This court by two separate orders dated 29.7.2010 had directed the petitioners representation
dated 5.4.2010 to be considered on merits and to pass orders within the time frame. It is pursuant to the said direction, the respondent SIPCOT
had consulted the Director of Town and Country Planning as noted above and had issued the impugned communication rejecting the request.
The President of the Land and Plot Owners Association, Madipakkam by name E.Sambandam made a query under the RTI Act with reference
to the allotment of land acquired from the petitioners. Pursuant to the said query, it was indicated that the lands were allotted to various companies
at SIPCOT Industrial Park, Pillaipakkam. There were as many as 21 allottees in the domestic tariff area and in the Special Economic Zone, there
were three companies. A further enquiry was also made with reference to the specific allotment of various survey numbers owned by the
petitioners by letter dated 1.6.2011. Pursuant to the said communication, the second respondent by a reply dated 17.6.2011 informed the
information seeker as to the nature of allotment made and the relevant survey numbers, which are as follows:
With regard to your request vide letter dt. 1.6.2011, it is informed that M/s. Ashok Leyland Ltd. have been allotted land in the following survey
nos. in Pillaipakkam village:
S. Nos. 33 / 4.010 Hec.
34 / 2.925 Hec.
40 / 3.455 Hec.
73A / 6.765 Hec.
78 / 0.925 Hec.
The other contentions raised by the petitioners that patta lands are standing in the name of the petitioners even before the notification was issued
for acquiring lands. They were only existing as house sites and no gift deed was given in favour of any local body. Therefore, the two petitioners
are the owners of the said land. Hence they cannot be denied compensation. The petitioners have also stated that acquisition has been done for
industrial purpose and that the entire lands have been handed over to M/s.Ashok Leyland to an extent of 380 acres by the SIPCOT. Having sold
the entire land to the authorised allottees, the petitioners cannot be deprived of their right to receive the legitimate compensation. So long as the
ownership of the land vest with the petitioners, the question of the respondents denying payment of compensation in respect of the lands which
were earmarked in the earlier layout approval as OSR cannot be accepted. The action of the respondents were totally in violation of the TALIP
Act. It is in this background, both writ petitions came to be filed.
In both writ petitions, notice of motion was ordered on 29.10.2011. On notice from this court, on behalf of the second respondent, two counter
affidavits, dated Nil (December, 2011) were filed in respect of two writ petitions.
In the counter affidavit filed by the respondents, with reference to the denial of their claim, it was stated in paragraphs 5(iv), 8, 9, 19 and 20 as
follows:
5(iv)As per the approved layout, the following lands
have been set apart for the public purposes such as road and
park.
(1) S.No.33/2 - 10,179 sq.ft.
(2) S. No. 34/22 - 0.18.5 hec.
(3) S.No.34/54 - 0.19.5 hec.
(4) S.No.78/3A1(p) - 0.16.5 hec.
(5) S.No.73A/1A1A(p) � 0.31.0 hec.
(6) S.No.73A/2A1A(p) � 1.04.0 hec.
(7) S.No.73A/6A1 (p) - 0.60.5 hec.
(8) S.No.40/16 - 2,845 sq.metres.
The petitioner, as per the approved layout did not hand over the lands set apart for the public purpose to the local panchayat by executing gift
deeds etc. as required. However, the lands set apart for the public purpose became vest with the local panchayat and as such, compensation for
these lands were not paid to the petitioner.
8....it is respectfully submitted that as per the direction in the above writ petition, the petitioner was heard and orders passed in RC/A No.
54/2010, dated 02.11.2010 rejecting the claim of the petitioner to pay to him the compensation for the lands set apart for public purposes in the
layout approved by the D.T.P. as the local body has become the owner of these lands set apart for the public purposes as per the provisions, even
though the petitioner had not executed gift deed.
9....the said lands were earmarked for public purposes and that failure on the part of the petitioner to hand over the same to local authorities or to
execute gift deed anyhow will not revert title or ownership of these lands on the petitioner.
19....it is respectfully submitted that the petitioner admits that though the approval was granted as early as in 1984 and from 1984 to 2008, no gift
deed was executed in favour of the local authority and the petitioner did not even get the lands set apart for the public purpose converted back as
house sites all these years and as such, the petitioner failed to fulfil the conditions of the layout to hand over the lands to the local authority through
gift deed. The petitioner is not entitled to the compensation for these lands, as alleged.
20....non-execution of gift deed in favour of the local authority and non-handing over of the lands set apart for public purposes in the lay out do not
mean that the local body is not entitled to the compensation for the said lands.
In the light of the rival contentions, it has to be seen whether the stand of the respondent SIPCOT in refusing to provide compensation to the
petitioners in respect of the acquisition of lands on the ground that those lands were set apart under the OSR and meant for public purpose and if
at all the compensation will have to be given only to the local body and not to the land owner, is correct?
In this context, it is necessary to refer to the relevant provisions of the Tamil Nadu Town and Country Planning Act, 1971. u/s 47 of the Act,
after coming into force of any development plan in any area, no person other than any State Government or the Central Government, or any local
authority shall use or cause to be used, any land or carry out any development in that area otherwise than in conformity with such development
plan. It is under this Act, the authority concerned prepares development plan, in which provisions are made for reserving certain areas as open
space for the purpose of Park, laying streets, etc.,
The term ""public open space"" is defined u/s 2(34) and the term ""public place"" is defined u/s 2(35), which reads as follows:
2(34) ""public open space"" means any land whether enclosed or not belonging to the Central or any State Government or any local authority or any
body corporate, owned or controlled by the Central or any State Government on which there is no building or of which not more than one-
twentieth part is covered with buildings, and the whole or the remainder of which is used for purpose of recreation, air or light;
(35) ""public place"" means a place (including a road, street or way, whether a thoroughfare or not, and a landing place) to which the public are
granted access or have a right to resort or over which they have a right to pass;
Even the regulations framed in terms of Section 124 do not talk about the transfer of ownership of land by an automatic operation of law. On
the other hand, it only talks about making up gift deed in favour of local authority for the purpose of maintaining the open space as open space for
public use. The Land Acquisition Act and the Tamil Nadu town and Country Planning Act operate in different spheres. The Town and Country
Planning Act is not a statute for providing acquisition of any property.
12.The Supreme Court vide its judgment in Pt. Chet Ram Vashist (Dead) by Lrs. Vs. Municipal Corporation of Delhi, in paragraph 6 has held as
follows:
6.Reserving any site for any street, open space, park, school etc. in a layout plan is normally a public purpose as it is inherent in such reservation
that it shall be used by the public in general. The effect of such reservation is that the owner ceases to be a legal owner of the land in dispute and he
holds the land for the benefit of the society or the public in general. It may result in creating an obligation in nature of trust and may preclude the
owner from transferring or selling his interest in it. It may be true as held by the High Court that the interest which is left in the owner is a residuary
interest which may be nothing more than a right to hold this land in trust for the specific purpose specified by the coloniser in the sanctioned layout
plan. But the question is, does it entitle the Corporation to claim that the land so specified should be transferred to the authority free of cost. That is
not made out from any provision in the Act or on any principle of law. The Corporation by virtue of the land specified as open space may get a
right as a custodian of public interest to manage it in the interest of the society in general. But the right to manage as a local body is not the same
thing as to claim transfer of the property to itself. The effect of transfer of the property is that the transferor ceases to be owner of it and the
ownership stands transferred to the person in whose favour it is transferred. The resolution of the Committee to transfer land in the colony for park
and school was an order for transfer without there being any sanction for the same in law.
(Emphasis added)
Similar view was taken by the Supreme Court in Bombay Dyeing and Mfg. Co. Ltd. Vs. Bombay Environmental Action Group and Others,
and in paragraph 158, it was observed as follows:
158.The said Regulations were framed u/s 22(m) of the MRTP Act for controlling and regulating the use and development of land. They are not,
and cannot be, treated to be provisions for compulsory acquisition of land. It also does not provide for reservation and/or designation in a
development plan.
(Emphasis added)
Subsequently, the Supreme Court in Chairman, Indore Vikas Pradhikaran Vs. Pure Industrial Cock and Chem. Ltd. and Others, held that
expropriatory legislation should be given a strict construction and in paragraphs 57,58 and 60, the Supreme Court held as follows:
57.The Act being regulatory in nature as by reason thereof the right of an owner of property to use and develop stands restricted, requires strict
construction. An owner of land ordinarily would be entitled to use or develop the same for any purpose unless there exists certain regulation in a
statute or a statutory rules. Regulations contained in such statute must be interpreted in such a manner so as to least interfere with the right to
property of the owner of such land. Restrictions are made in larger public interest. Such restrictions, indisputably must be reasonable ones. (See
Balram Kumawat v. Union of India5; Krishi Utpadan Mandi Samiti v. Pilibhit Pantnagar Beej Ltd. 6 and Union of India v. West Coast Paper Mills
Ltd. 7) The statutory scheme contemplates that a person and owner of land should not ordinarily be deprived from the user thereof by way of
reservation or designation.
Expropriatory legislation, as is well-known, must be given a strict construction.
The question has also been addressed by a decision of the Division Bench of this Court in Pt. Chet Ram Vashist v. Municipal Corpn. of
Delhi16, wherein R.M. Sahai, J., speaking for the Bench opined: (SCC p. 54, para 6)
Reserving any site for any street, open space, park, school, etc. in a layout plan is normally a public purpose as it is inherent in such reservation
that it shall be used by the public in general. The effect of such reservation is that the owner ceases to be a legal owner of the land in dispute and he
holds the land for the benefit of the society or the public in general. It may result in creating an obligation in nature of trust and may preclude the
owner from transferring or selling his interest in it. It may be true as held by the High Court that the interest which is left in the owner is a residuary
interest which may be nothing more than a right to hold this land in trust for the specific purpose specified by the coloniser in the sanctioned layout
plan. But the question is, does it entitle the Corporation to claim that the land so specified should be transferred to the authority free of cost. That is
not made out from any provision in the Act or on any principle of law. The Corporation by virtue of the land specified as open space may get a
right as a custodian of public interest to manage it in the interest of the society in general. But the right to manage as a local body is not the same
thing as to claim transfer of the property to itself. The effect of transfer of the property is that the transferor ceases to be owner of it and the
ownership stands transferred to the person in whose favour it is transferred. The resolution of the Committee to transfer land in the colony for park
and school was an order for transfer without there being any sanction for the same in law.
(See also Raju S. Jethmalani v. State of Maharashtra17.)
(Emphasis added)
15.The Supreme Court once again in Babulal Badriprasad Varma Vs. Surat Municipal Corporation and Others, in paragraph 33 had observed as
follows:
33.We are, however, not unmindful of the fact that a statute of town planning ex facie is not a statute for acquisition of a property. An owner of a
plot is asked to part therewith only for providing for better facilities of which he would also be a beneficiary. Every step taken by the State does
not involve application of the doctrine of eminent domain.
(Emphasis added)
16.If it is seen in the light of these legal precedents, the stand taken by the respondents are clearly illegal and impermissible. The land owners are
clearly entitled for constitutional protection in terms of Article 300-A of the Constitution, which reads as follows:
300-A.Persons not to be deprived of property save by authority of law.-No person shall be deprived of his property save by authority of law.
In the present case, the lands before acquisition itself were in approved layout and certain areas have been shown as open space for public
use. But, however when the acquisition of land took place for industrial scheme conceived by the SIPCOT, the purpose of use of the land got
completely changed and even the areas which were reserved for open space is no longer relevant. The SIPCOT sold the lands to the private party
in respect of the entire extent. Those lands were no longer kept as open space meant for a park or a street. After obtaining the land cost from the
private companies, necessary compensation will have to be paid to the real owners.
In the present case, the local authorities for whose cause the respondent SIPCOT is pleading, have not become owners of the land either by
way of gift deed or by way of any operation of law. On the other hand, admittedly no gift deed has been executed in favour of the local body.
Even otherwise, as held by the Supreme Court in catena of decisions referred to above, the local body does not become the owner of the land and
it is merely a custodian. Further the Town and Country Planning Act is not an Act providing for land acquisition. Hence the contentions raised by
the respondents cannot be countenanced by this Court. In view of the above, both writ petitions will stand allowed and the impugned
communication will stand set aside. The respondents are hereby directed to provide appropriate compensation to the two petitioners in respect of
the lands owned by them in various survey numbers which were acquired by the respondents in favour of SIPCOT whether or not it is house site
or land meant for public open space. This exercise shall be carried out within a period of 12 (twelve) weeks from the date of receipt of copy of this
order. No costs. Consequently, connected miscellaneous petitions stand closed.