N SUBRAMANIAM Vs. STATE OF TAMIL NADU

JUDGEMENT

(1.) THE petitioners challenge G.O.Ms.No.977, Housing and Urban Development Department, dated 17.8.1990, published in the Tamil Nadu Government Gazette,12.9.1990 and quash the publication issued under Sec.37(2) of the Town andPlanning Act 1971, in so far as the petitioners are concerned in respect of theircomprised in Survey Nos.107 and 136 in No.156, in Mamallapuram Village, ChingleputChengai-Anna District.

(2.) THE short facts which lead to the filing of the writ petition follows: THE subject matter of the lands are situate in Mamallapuram village and Mamallapuram celebrated port-town, drawing a large number of tourists and pilgrims. THE growth population and the influx of tourists were considered by the New Town Development Authority, Mamallapuram, the second respondent herein and since the existing bus a small one the second respondent suggested that the lands in S.Nos.107 and 136 suitable for constructing a new bus-stand. THE New Town Development Authority, acting accordance with the provisions of the Tamil Nadu Town and Planning Act, 1971 prepared New Town Development Plan and submitted the same to the Government. Sec.49 of Tamil Nadu Town and Country Planning Act, 1971 provides for the enforcement of the plan so prepared from the date of consent accorded by the Government to the Plan. When Member Secretary, Mamallapuram New Town Development Authority requested Government for acquiring the above mentioned lands for construction of Bus Stand, the New Town Development Plan for Mamallapuram New Town was consented by Government under sub-sec.(2) of Sec.24 of the Town and Country Planning Act in G.O.Ms.No.968. Housing and Urban Development, dated 29.9.1989, and it was published in the Tamil Nadu Government Gazette on 15.11.1989 as required under Sec.26 of the Town and Country Planning Act, 1971. THE two survey numbers in question have been reserved for Bus Stand in the above said New Town Development Plan. This was selected by the Task Force, chaired by the Chief Secretary to Government on 21.3.1988. THE Committee of Town and Country Planning Board has sanctioned a sum ofRs.12.11 lakhs for the acquisition of land for the Bus Stand. In view of the provisions under Sec37(1) of the Town and Country Planning Act, a proposal was sent by the Director of Town and Country Planning to the Government for acquiring above mentioned lands under Sec.37(2) of the Town and Country Planning Act. After verifying the facts as to whether the provisions of the Act have been complied with, a draft declaration under Sec.37(2) has been approved by the Government by the impugned Government Order. THE declaration as published in the Gazette reads as follows: ".....No.II(2)HOU/4461/90-Whereas, a notice was published with Mamallapuram New Town Development Authority Notification No.VI(1) 1964 of 1989, dated the 30th September, 1989, at page 597 of Part Vl-Sec.1 of the Tamil Nadu Government Gazette, dated the 15th November, 1989 of preparation of a New Town Development Plan for Mamallapuram New Town under Sec.26 of the Tamil Nadu Town and Country Planning Act, 1971 (Tamil Nadu 35 of 1972) and the Government of Tamil Nadu having been satisfied that the lands specified in the schedule below have to be acquired for a public purpose, viz., for formation of a bus-stand, and it having already been decided that the entire amount of compensation to be awarded for the lands is to be paid out of the public revenues, the following declaration is issued under Sub-sec. (2) of Sec.37 of the Tamil Nadu Town and Country Planning Act, 1971 (Tamil Nadu 35 of 1972): DECLARATION Under Sub-sec.(2) of Sec.3 of the Tamil Nadu Town and Country Planning Act, 1971 (Tamil Nadu Act 35 of 1972), the Governor of Tamil Nadu hereby declares that the lands specified in the schedule below and measuring 3.09 0 hectares, be the same, a little more or less, needed for a public purpose, to wit, for construction of a bus-stand as required in the New Town Development Plan of Mamallapuram by the New Town Development Authority, Mamallapuram, Chengalpattu Taluk, Chengai Anna District. A plan of the lands is kept at the District Collector 's Office, Kancheepuram and be inspected at any time during office hours......" It is alleged in the affidavit that the exact location of the proposed bus-stand from the tourist attraction spots like shore temple and other monuments will be about 6 to 7 kms. is further alleged that the tourist interest will be seriously affected if the new acquisition lands took place, that there are other more convenient and vacant sites situate on the side of the shore temple road as well as at the very entrance of the village viz., poramboke land and other lands. It is also alleged in the affidavit that the proposal to locate the bus stand in the lands to be acquired is incorrect, and that the public interest will be greatly affected if the proposed new bus-stand is put up in the lands to be acquired. It is also stated that when there is a draft report pending consideration, the Government cannot invoke provisions of the Land Acquisition Act and that the impugned notice purporting to be the issued under Sec.37(2) of the Tamil Nadu 37 of 1972, is illegal. It is further stated in affidavit filed in support of the writ petition that when a draft proposal is pending and draft contains a proposal to locate a new bus-stand in a particular survey number before draft has become final cannot be done and that the notification under Sec.37(2) cannot treated as a final one. It is also stated that if the lands are to be acquired under the Acquisition Act, there are certain procedures to be followed viz., notification under Sec.4(l) of the Act and the enquiry under Sec.5-A-of the Act, that such a course of action is contemplated under Sec.37 of the Town and Country Planning Act, 1971 and that therefore Sec.37 of the Act is arbitrary. It is also stated that the impugned notification is bad in law the ground that there is a colourable exercise of power. It is also stated that principles natural justice are violated and that the lands are taken over without considering objections of the petitioners and that it is an infringement of Art.300-A of the Constitution India.

(3.) I have considered the arguments of Mr.N.Ganapathy, the learned counsel appearing the petitioners and of Mrs.N.Kalaiselvi, the learned Government Advocate appearing for the respondents. Sec.26 of the Tamil Nadu Town and Country Planning Act, 1971 (hereinafter referred to as the 'Act ', 1971 ') provides notice of the preparation of the regional plan, the master plan or the new town development plan, and it reads as follows:'......(1) As soon as may be, after the appropriate planning authority has receivedconsent of the Government under sub-sec.(2) of Sec.24 to the publication of the notice, appropriate planning authority shall publish the notice in the Tamil Nadu Government Gazette and in leading daily newspapers of the region of the preparation of the plan, the master plan or the new town development plan, as the case may be, and the or places where copies of the same may be inspected, inviting objections and suggestions writing from any person in respect of the said plan within such period as may be specified the notice Provided that such period shall not be less than two months from the date of the publication of the notice in the Tamil Nadu Government Gazette. 2. After the expiry of the period mentioned in Sub-sec.(l), the appropriate planning shall allow a reasonable opportunity of being heard to any person including representatives of Government departments and authorities, who have made a request for being so and make such amendments to the regional plan, the master plan or the new development plan, as the case may be, as considers proper and shall submit the said with or without modifications to the Government..... 'Sec.27 of the Act, 1971 provides the notice of the preparation of the detailed development plan which reads as follows: '....(1) As soon as may be, after the local planning authority has received the consent Director under sub-sec. (2) of Sec.25 to the publication of the notice, the local planning authority shall publish the notice in the Tamil Nadu Government Gazette, and in leading daily newspapers of the region of the preparation of the detailed development plan and place or places where copies of the same may be inspected, inviting objections, suggestions in writing from any person in respect of the said plan within such period as be specified in the notice Provided that such period shall not be less than two months from the date of the publication of the notice in the Tamil Nadu Government Gazette. (2) After the expiry of the period mentioned in sub-sec.(l), the local planning authority allow a reasonable opportunity of being heard to any person including representatives Government departments and authorities, who have made a request for being so heard make such amendments to the detailed development plan as it considers proper and submit the said plan with or without modifications to the Director..... 'Sec.28 of the Act, 1971 provides for approval of the Government and Sec.30 speaks coming into operation of regional plan, master plan and new town development plan.