Pillayar P.K.V.K.N. Trust V/S Karpaga N.N.U.S.CIVIL APPEAL NOS. 7305-7306 OF 2010 September 1, 2010

Reportable

IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS. 7305-7306 OF 2010
(Arising out of SLP (C) Nos. 25750-25751 of 2007)

Pillayar P.K.V.K.N. Trust
Thru Ramanathan .... Appellant
Versus
Karpaga N.N.U.S.
Rep. by Secretary & Ors. .... Respondents

JUDGMENT
V.S. SIRPURKAR, J.
1. Leave granted.
2. The appellant-a religious Trust challenges the judgment 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 Nos. 276

and 369, meaning thereby that those plots could be used for any other

purpose.


3. Some factual background would be necessary before we approach

the controversy. The appellant is a Trust formed in the year 1924 to look

after religious and secular activities of 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 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 plan was submitted to Tallakulam Town Panchayat which was the

appropriate authority in the year 1972. This layout plan was approved by

Tallakulam 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.
3


Pursuant thereto, 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. The Madurai Corporation insisted to

revalidate the plan. The Trust again applied for revalidation of the original

plan in 21/72. Plan No.1/75 showed 40 plots as reserved 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 (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 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.
4


5. Thereafter when the Trust proposed to make some constructions in

plot No.342, Madurai Corporation granted its 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

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 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.
5


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 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 and pointed out that

the stance taken by the Corporation was not correct and that this new plan

No. 9 of 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 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 purpose, was clearly in contravention of plan 12/80. In

that representation the Trust gave the whole history which has been stated
6


above by us. It was pointed out that the whole area was reserved for

residential purpose under the approved plan and on that strength, several

plots were sold to several persons and 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 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 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 Corporation

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 aforesaid gift deed

was also sent by the Trust. It was thereafter informed by the Trustee on
7


28.2.1995 that the aforementioned 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 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 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
8


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 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 30.1.1974, 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 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 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 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
9


further representations made by the Trust to the Government and the

ultimate order passed by the Government. The learned Senior Counsel

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

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

misunderstanding the High Court's judgment in W.P. No.1565/87.

According to the learned Counsel, the order gives an 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 pointed out
10


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 whether the High

Court was justified in allowing the petition as it did. The High Court

formulated the following points:


(1) Whether the challenged order G.O.Ms.244 dated 23.9.94 was
vitiated by mala fides and in excess of the powers of the first
respondent in violation of principles of natural justice?

(2) Whether the modification issued under Section 27 of the Town
and Country Planning Act reserving 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?

(3) 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 (4) of Madurai City Municipal

Corporation Act from the present appellant, the said demand notice was

quashed as per order in W.P. No.8962 of 1988. 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 development plan No.

9 of 92. The High Court then came to the conclusion that G.O.Ms. 244
11


dated 23.3.1994 was illegal, vitiated by mala fides 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

mala fides 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 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 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 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.
12


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 mala fides or was in violation of the

principles of natural justice. In our opinion, the deductions reached by the

High Court in 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 not at all necessary. The High Court

then referred to the argument made 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 deemed 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:-
13


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 sub-section (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 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 to have been released. The High Court has

also referred to the 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 Government cannot deprive the

persons from using their private property and, therefore, the acquisition of

the property is a must before any such person is restrained from using the

land. The High Court has again extensively referred to the earlier two

decisions of this Court in Bangalore Medical Trust Vs. B.S. Muddappa &

Ors. [1991 (4) SCC 54] and Balakrishna H. Sawant & Ors. Vs. Sangli

Miraj & Kupwad City Municipal Corporation & Ors. [2005 (3) SCC 61].

However, we do not find any answer in these judgments. The respondents
14


had specifically raised these questions in view of the fact that the

concerned property has not so far been acquired. Therefore, it is clear that

Section 38 will come in the way of the Government, and the appellant

Trust could not have been stopped from using the property on the

spacious ground that the said property was reserved for construction of

school way back in the year 1975 and thereafter in 1992.


17. However, the High Court seems to have proceeded on the basis of

Section 250 of The Madurai City Municipal Corporation Act, 1971. Section

250 runs as under:-


"250. Owners Obligation To Make a Street When Disposing of
Lands as Building Sites:

(1) 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,
layout and make a street or streets giving access to the
site or sites and connecting with an existing public or
private street.

(2) In regard to the laying out or making of any such street
or streets, the provisions of Section 251 shall apply,
subject to the conditions that the owner shall remit a
sum not exceeding 50 per cent of the estimated cost of
lay-out improvements in the land and that the owner
shall also reserve not exceeding 10 per cent of the lay-
out for the common purpose in addition to the area
provided for laying out streets. If any owner
contravenes any of the conditions specified above, he
shall be liable for prosecution.
15


(3) If in any case, the provisions of sub-Sections (1) and (2)
have not been complied with, the Commissioner may,
by notice, require the defaulting owner to layout and
make a street or streets on such land and in such
manner and within such time as may be specified in the
notice.

(4) If such street or streets are not laid out and made in the
manner and within the time specified in the notice, the
Commissioner may lay-out and make the street or
streets, and the expenses incurred shall be recovered
from the defaulting owner.

(5) The Commissioner may in his discretion, issue the
notice referred to in sub-Section (3) or recover the
expenses referred to in sub-Section (4) to or from the
owners of any buildings or lands abutting on the street
or streets concerned but any such owner shall be
entitled to recover all reasonable expenses incurred by
him or all expenses paid by him, as the case may be,
from the defaulting owner referred to in sub-Section (3)."



Relying on this Section and, more particularly, sub-Sections (1) and

(2), the High Court was of the view that before the usurp of the land within

the Municipal Corporation for a layout, 10% of such land was bound to be

reserved for common purposes. The High Court firstly came to the

conclusion that the Trust itself sought the approval of the layout plan from

the Corporation after Tallakulam Town Panchayat merged with the

Madurai Corporation. The High Court made a reference to the 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
16


the effect that such plan which has crystallized the rights of the Trust in

respect of 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 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 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

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 with 21 acres, but had also effected a gift deed in
17


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) by making reference to 10% of the

area. Therefore, the factual background, on which the provision is tried to

be made 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 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 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
18


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 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.


21. It cannot be contemplated that once the land, even if it was reserved

for public purpose like construction of school in the plan of 1992 and got

released because it 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 spacious plea under Section 250 of the

Madurai Corporation Act.
19


22. Besides all this, it is clear that on 19.5.1972, the Tallakulam Town

Panchayat had approved the plan submitted by the temple for 76.12 acres

thereby 910 plots were shown in the plan and 40 plots were retained and

the balance plots appear to have been sold. However, in the year 1972,

when the Tamil Nadu Town & Country Planning Act, 1971 came into force,

as Act No.25 of 1972, the whole area became part of the Madurai

Corporation w.e.f. 30.1.74. It was then liable to be seen that after the plan

of 1975 was prepared, that plan was specifically referred in the

communication dated 18.6.82 whereby the Commissioner, Madurai

Corporation sought clarifications from the Deputy Director, Regional Town

and Country Planning about the effect of DDP on the layout in LP 1/75 and

on 30.8.82, the Deputy Director, Regional Town & Country Planning had

specifically conveyed that the approved layout plan 1 of 75 required

modifications and it should be treated cancelled and that the Corporation

may act as per the approved plan No.12/80. This specific position was

completely ignored by the High Court. The High Court merely went on to

record its comments on the judgment of the Madras High Court in W.P.

No.1565/87.


23. We have nothing to say about those comments. However, the fact

of the matter is that the respondent herein and the original Writ Petitioner

was a party to that Writ Petition and to the judgment whereby specific
20


permission was granted for the construction in plot Nos. 276 and 269

which was part of the aforementioned 40 plots.


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

time to take appropriate decision in terms of the direction of the High Court

which had given three months' time. It is specifically pointed out that the

application for sanction could be rejected only in case the detailed

development for this area, the two plots came under the classification

`reserved for public purpose'. Even giving three months' time, such step

could not be taken and indeed it could not have been taken in view of the

earlier factual scenario, more particularly, because of the decision dated

30.8.82 whereby the approved plan 12/80 was preferred to plan No.1/75.

Though we need not go into the further question as to whether the decision

in W.P.No.1565/87 would be res judicata as even otherwise it is clear that

the State Government had taken a right stance in passing the order dated

23.9.94 vide G.O.Ms. 244.


25. The High Court in the last, has given the direction that the plots

covered in LP/MR 1/75 cannot be used for any purpose other than public

purpose mentioned therein with the exception of the plot Nos. 276 and

369. In our opinion, this was a completely incorrect direction particularly

because way back in 1982, plan No.1/75 was treated as cancelled and

there was no revival of that plan.
21


26. Last but not the least, respondent No.1 herein, Karpaga Nagar Nala

Urimai Sangam represented by Shri A. Shamugavel had filed an Original

Suit No.1106/86 in the Court of Additional District Munsif Court, Madurai

Town 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 than the purpose for which it was reserved in LP

MR 1/75.


27. For all these reasons, we cannot affirm the judgment of the High

Court. It is set aside and the Writ Petition filed by the respondent is

directed to be dismissed with costs of Rs.50,000/-.




...................................J.
[V.S. Sirpurkar]



...................................J.
[Cyriac Joseph]
September 1, 2010;
New Delhi.