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Judgment
G. Rajasuria, J.—This writ petition has been filed to call for the records relating to the letter of the first respondent dated 07.11.2008 in Na.Ka. No. 1925/08thi.vu.thi.ku-2, quash the same and consequently direct the said respondents 1 and 2 to exclude the petitioners lands in S.F. No. 125/1A, 123/1A & 124/1A, 178/1 and 180/4 in Vadaganeri Village, Tiruchirapalli Taluk from Varakaneri South Extension development scheme and not to treat any portion of the said properties as earmarked for public purpose such as school or roads, etc., under the scheme.
Heard the learned senior counsel for the petitioner, Mr. R.Janakiramulu, learned Special Government Pleader appearing for the respondents 1 and 2 and also Mr. P.Srinivas, learned Counsel for the third respondent.
The facts giving rise to the filing of this petition as stood exposited from the averments in the affidavit accompanying the writ petition as well as from the submissions made by the learned Counsel for the petitioner could succinctly and precisely, tersely and briefly be set out thus:
The petitioner is a Private Limited Company doing business in developing land and raising constructions for being sold to the public. While so, when the petitioner approached the first respondent for the purpose of developing the land and raising constructions, they by citing detailed development plan, rejected the proposal. The grievance of the petitioner is that despite lapse of three years, the project as contemplated under the detailed development plan was not implemented. In such a case, as per law, the petitioner is free to develop the land subject to the provisions of law and deal with it.
In support of the contention of the petitioner, the learned senior counsel for the petitioner by citing the earlier decision of this Court dated 05.09.2008 in W.P.3083 of 2008, would develop his arguments to the effect that the said writ petition was filed by the very same petitioner in respect of the adjacent lands as against the same respondent, wherein this Court ordered thus:
Considering Section 38 of the Tamil Nadu Town and Country Planning Act, 1971 which deems the release of property in the event of not acquiring within the stipulated time of three years as per proviso to Section 37(2), based on the overall scheme and object of the Act and also on the factual circumstances, when the authority, viz., the Trichy Corporation has categorically decided that due to want of funds, there is no proposal to acquire the same, there is no difficulty to come to the conclusion that the deemed provision comes into effect automatically.
In an unreported judgement of the Supreme Court in Appeal (Civil) No. 438/00 dated 23.2.2005 rendered in Balakrishna H.Sawant v. Sangli, Miraj & Kupwad City M.Corporation and Ors. considering a similar situation where the Corporation has informed the Court that it has no sufficient financial resources for construction of high school and playground in a portion of the land in question reserved in the development plan under Maharashtra Regional and Town Planning Act,1966, it was held that such reservation will serve no purpose and the same is deemed to have lapsed by efflux of time and in view of the same, the reservation of the said portion of the land was quashed by the Supreme Court. The operative portion of the judgement is as follows:
This Court granted special leave on 18th January,2000. When we took up this appeal for hearing, it was brought to our notice by counsel appearing on behalf of the respondent Corporation that by its resolution of 20th July,2002 the Corporation had resolved to the effect that the Corporation does not have sufficient financial resources to construct a high school and play ground on the land in question, and since the matter is pending before this Court the litigation may involve further expenditure. For the aforesaid reasons the Corporation does not need the subject land and for that purpose necessary proceedings at Government level may be initiated. It was also resolved to bring this resolution to the notice of this Court. It appears that subsequently a proposal was sought to be made by the Corporation to recall its resolution of 20th July,2002. The said proposal is dated 13th May,2003 but the Government of Maharashtra rejected the proposal and refused to permit the Corporation to revoke the earlier resolution. The communication of the Government of Maharashtra in this regard is dated 18th May,2004. Under the Maharashtra Regional and Town Planning Act, 1966 a modification of the Final Development Plan of a minor nature can be made by the planning authority. It also enables the State Government to direct the planning authority to make such modification, and on failure of the planning authority to carry out the direction, the State Government may itself notify the proposed modification inviting objections. It was, therefore, submitted before us that the procedural requirements of the Act are such that they are bound to take time. Counsel for the Corporation states that the resolution of July 20, 2002 stands and the respondent Corporation is bound by it and holds itself bound even today, meaning thereby, that the land shown as reserved in the Development Plan is not required by the Municipal Corporation as it does not have the resources to develop the said land and construct a high school and play ground over it. The stand of the State Government even before the High Court was that the reservation had lapsed. It is, therefore, apparent that the reservation will serve no purpose except to cause harassment to the appellant without any corresponding benefit to the respondent Corporation. Ultimately, the respondent Corporation may not take any steps to get the land acquired, and in that event, by efflux of time the reservation may again lapse.
With a view to avoid all these delays and complications, we quash the reservation in respect of the land in question owned by the appellant and allow this appeal. The impugned judgement and order of the High Court is accordingly set aside and the writ petition preferred by respondent Corporation is dismissed.
At this stage, it is relevant to point out that in a similar circumstance while deciding the provisions of Sections 37 to 39 and 49 of the Tamil Nadu Town and Country Planning Act, 1971, A.Kulasekaran,J. in Casa Grande Private Limited Vs. Chennai Metropolitan Development Authority (CMDA), , after referring to various judgements which are relevant to the facts of the said case, has held as follows:
The State can prepare development plan covering the private lands, but no development can be made on that land unless the private land is acquired for development, even for providing amenities to the residents of the area.
In view of the above said legal position applied on the facts of the present case and in the light of the provisions of the Tamil Nadu Town and Country Planning Act, 1971, the impugned order of the first respondent dated 25.1.2008 is set aside and consequently, by application of Section 38 of the Tamil Nadu Town and Country Planning Act, 1971, it is declared that the respondents are not entitled to treat the survey Nos. 126/6, 125/2 and 125/1B in Varaganeri village as earmarked for public purpose under the Varaganeri South Development Scheme and the writ petition stands allowed.
A bare perusal of the said Judgment would highlight and spotlight that after lapse of three years, there is no embargo for the developer like the petitioner to develop the land and deal with it as per law.
Whereas the learned Special Government Pleader by placing reliance on the counter affidavit would raise the same contentions as they were raised in the earlier writ petition.
I would like to point out that all these contentions of the first respondent were negatived by this Court earlier. Incidentally, I would like to point out that the earlier Judgment of this Court is binding on this Court and hence I would like to place reliance on the said precedent and ordered this writ petition on the same line as under:
In view of the above said legal position applied on the facts of the present case and in the light ofthe provisions of the Tamil Nadu Town and Country Planning Act, 1971, the impugned order of the first respondent dated 07.11.2008 is set aside and consequently, by application of Section 38 of the Tamil Nadu Town and Country Planning Act, 1971, it is declared that the respondents are not entitled to treat the S.F. No. 125/1A, 123/1A & 124/1A, 178/1 and 180/4 in Vadaganeri Village, Tiruchirapalli Taluk as earmarked for public purpose under the Varaganeri South Development Scheme and the writ petition stands allowed. No costs. Consequently, connected Miscellaneous Petition is closed.