The petitioner, who is a Special Officer of the Madura Coats Employees and Public Service Co-operative Housing Society Limited, has filed this writ petition seeking for a Mandamus to direct the respondents to hand over the possession of the land (15 cents) bearing S.No.152 in Agasthiyarpatti Village, Sivanthipuram Panchayat, Ambasamudram Taluk, Tirunelveli District or to award cost of the land illegally acquired by the respondents 2 and 3.
2. The brief facts that lead to the filing of the writ petition are as follows:-
The petitioner which is a Housing Society acquired vast extent of land in Sivanthipuram Village Panchayat, Ambasamudram Taluk, Tirunelveli District, and had developed the lands into plots and the lay out was also approved by the Director, Town and Country Planning in LPD No.688/90, dated 07.09.1990 vide his letter in Na.Ka.No.15474/90 LA. Dated 07.09.1990. In the said approved lay out about 38,91,658 sq.feet was reserved for park and play fields and an extent of 54,222 sq.feet was reserved for shops and an extent of 32400 sq.feet was reserved for school apart from roads.
3. The area reserved for roads and park was handed over to the local authority namely the Commissioner of Panchayat Union, Ambasamudram, by a transfer deed dated 14.03.1991. Thereafter, the petitioner had sold the plots to various persons and there are about 950 houses constructed in the said area as of today.
4. It appears that on earlier occasions, the Cooperative Society has allowed construction of certain public utility services like fair price shops, school etc., on specific resolutions passed by the Society. The President of the third respondent Panchayat by his letter dated 26.03.2010 requested permission of the Special Officer of the petitioner's society to construct a commercial building to enable the women self help groups to market their products. The Block Development Officer of Ambasamudram Panchayat Union, had also made a similar request on 26.03.2010 to the Petitioner Society. The second respondent vide his letter dated 26.03.2010, had stated that the Planning Officer of the District Rural Development Agency had inspected the land in question and had directed him to seek permission of the petitioner society to construct a commercial building to enable the women self help group to market their products. The petitioner also wrote to the Deputy Registrar (Housing) Tirunelveli, on 05.04.2010 seeking his permission. However, the Deputy Registrar (Housing), Tirunelveli, by his letter dated 10.07.2010 had refused permission. The said letter dated 10.07.2010 was addressed to the Block Development Officer, Ambasamudram. A copy of the said letter was marked to the petitioner society. However, the respondents without even seeking further permission trespassed into the lands of the petitioner society and started construction. The Society in its meeting dated 17.08.2010 has passed a resolution to take appropriate legal proceedings for stopping the construction work commenced by the respondents.
5. The petitioner had also addressed a letter on 12.10.2010 to the Block Development Officer namely, the second respondent to stop construction. Since the construction was proceeded with, the petitioner has come forward with the present writ petition.
6. On 16.11.2010, this Court had granted an order of injunction and same has been periodically extended. Thus, there had been an interim injunction order right through the pendency of the writ petition. Even though, an application to vacate the order of injunction was filed, no order vacating the injunction was passed. In the counter affidavit filed by the 2nd respondent along with the vacate injunction petition namely M.P.(MD).No.1 of 2011, it is stated that the construction work was stopped in view of the order of injunction. Though the 3rd respondent was directed to file an affidavit with reference to the stage of the construction by order dated 17.08.2016, no affidavit has been filed.
7. The third respondent, President of the Sivanthipuram Village Panchayat has filed a counter affidavit, wherein , it is stated that the land in question was vested with the Commissioner Panchayat Union, Ambasamudram Panchayat under the gift deed dated 14.03.1991 bearing document No.526/1991.
8. A copy of the said gift deed has also been produced and I have gone through the said document. It only relates to portion of lands reserved for park and roads. No doubt true in the sanctioned plan, the area in question has been reserved for shops. Reserving any area in the lay out plan for public purpose is of two kinds. While the first kind is reservation for parks, play fields and roads. The lands set apart for the above purpose vested with the local authority and developer is required to execute a gift deed in respect of those properties. In respect of other portion reserved for public utility services like school, shops, police station, fair price shops etc., those areas will have to be acquired by the Government by taking action under Section 38 of the Tamil Nadu Town and Country Planning Act. If such acquisition is not made within 3 years of the sanction of the plan, then the land stands released and thus, the owner has no further obligation to maintain it as vacant land and he can deal with the same as if it is his own land.
9. Admittedly, the land in question was reserved for shops and library. It is also an admitted fact that no acquisition proceedings has been taken so far. In Pillayar P.K.V.K.N.Trust v. Karpaga N.N.U.S. reported in (2010) 8 MLJ 808, the Hon'ble Supreme Court has considered a similar situation, wherein the residents of the lay out developed by the appellant Trust had staked claim for the land that is reserved for other public utilities. The Honourable Supreme Court in paragraph 16 of the said judgment observed as follows;-
?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 Section 26 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 decision in Raja S.Jethmalani and Others v. State of Maharashtra and Others (2005) 11 SCC 222, where this Court has clearly held that the owner of the special alnd 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 v. B.S.Muddappa and Others AIR 1991 SC 1902:(1991) 4 SCC 54 and Balakrishna H.Sawant and Others v. Sangli Miraj & Kupwad City Municipal Corporation and Others AIR 2005 SC 1530:(2005) 3 SCC 61. However, we do not find any answer in these judgments. The respondents 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.?
10. In the light of the categorical dictum of the Hon'ble Supreme Court, it is clear that the respondents cannot claim that the land in question belongs to the local body or to the Panchayat Union. That is the reason why the respondents themselves on earlier occasion had requested the petitioner society to grant permission for putting up certain construction. The respondents 2 and 3 have addressed letters to the Special Officer of the petitioner's Society seeking his permission. The Special Officer in turn had addressed Deputy Registrar (Housing), seeking his permission. The Deputy Registrar vide his proceedings dated 10.07.2010 has refused permission. The said order has been addressed to the second respondent, namely the Block Development Officer, Ambasamudram Panchayat Union. While so, claiming that the property vested with the local body, the respondents 2 and 3 had commenced construction. The petitioner's Society had passed a resolution on 17.08.2010 to take legal action to stop the construction. The second respondent has been addressed by the Special Officer of the petitioner's Society on 12.10.2010 requesting him to stop the construction. This Writ Petition came to be filed on 12.11.2010 and order of interim injunction was granted by this Court on 16.11.2010 and the same has been extended periodically. It is therefore clear that the property in question does not vest with the local body. The Gift deed executed in favour of the local body filed along with the vacate stay petition would show that the land in question has not been gifted to the local body.
11. As already stated the land reserved for public purposes such as shops, post office, school etc., will have to be acquired within a period of 3 years, if there is no acquisition then the lands will be deemed to be released and it will revert to the developer of the lay out, namely, the petitioner's society. It is not in dispute that no acquisition either by invoking the statute or by private negotiations has taken place. Therefore, the petitioner's society remains the owner of the property and the respondents were not justified in trespassing into the same and attempting to put up the construction.
12. For the foregoing discussions, I have no hesitation in holding that that the action of the respondents in encroaching upon the property, without the permission of the petitioner society, and putting up the constitution is nothing but tresspass.
13. In the result, the writ petition is allowed. Rule Nisi made absolute and the respondents are directed to put the petitioner society in possession of the extent of 15 cents measuring in S.No.152, in Agasthiyarpatti Village, Sivanthipuram Panchayat, Ambasamudram Taluk, Tirunelveli District, within a period of 4 weeks from the date of receipt of a copy of this order. It is open to the respondents to acquire the land either by invoking the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 or through private negotiations. No costs. Consequently, connected miscellaneous petitions are closed.
To
1.The District Collector, Tirunelveli District, Tirunelveli.
2.The Block Development Officer (Village Panchayats), Ambasamudram Panchayat Union, Ambasamudram Post, Tirunelveli District.
3.The President, Sivanthipuram Village Panchayat, Ambasamudram Panchayat Union, Sivanthipuram Post ? 627 425, Tirunelveli District..