Non-compliance with the acquisition process within the stipulated period leads to the release of the property from reservation under Section 38 of Act 35 of 1972.

M. VENUGOPAL, J.

1. The Appellant/Municipality has preferred the present writ appeal as against the order dated 5.2.2008 in W.P. No.27123 of 2003 passed by the learned single Judge.

2. The Learned single Judge, while passing the order in W.P. No.27123 of 2003 dated 5.2.2008, among other things, observed that the Respondents had clearly stated in the affidavit, "even under the old Act VII of 1920, no steps were taken for the purpose of completing the acquisition within three years and the same has not been denied in the counter affidavit filed by the first respondent(appellant). Even assuming that the said scheme has been taken over under the Act 35 of 1972, even from the date of coming into effect of the Act within the period stipulated under Section 38, no steps have been taken by the respondents therein for acquiring the property for the purpose of "open space" stated to have been reserved under the North-East Extension Town Planning Scheme Part II, Aruppukottai sanctioned under G.O.Ms.No.474 LA dated 2.3.1969" and resultantly allowed the writ petition.

3. Feeling aggrieved against the order passed by the learned single Judge dated 5.2.2008 in W.P. No.27123 of 2003, the Municipality has preferred the instant writ appeal before this Court.

4. The Learned Counsel appearing for the Appellant/Municipality submitted that the order of the learned single Judge was contrary to the established principles of law and further, land in question was ear marked for the purpose of public utilization and it was declared as "Open Space" vide G.O.Ms.No.434 LA dated 2.3.1969 under Section 14(3) of Madras Town Planning Act VII of 1920 and as such the land was allotted to the Municipality. But, these material facts were not taken note of by the learned single Judge while allowing the writ petition, which resulted in a serious miscarriage of justice.

5. The Learned Counsel for the Appellant/Municipality came forward with a plea that the Learned single Judge had failed to appreciate the fact that the original Land owner Thiru.Thankkaya Nadar, instead of handing over the property in dispute to the Municipality, sold the same to the Respondents 1 to 4 herein and therefore, the sale was invalid one and not binding on the Municipality.

6. The Learned Counsel for the Appellant urges before this Court that the learned single Judge had committed an error in holding that the property ear-marked for the purpose has not been utilized as per the Notification and no steps have been taken by the Authority to acquire the property and as such, as per Section 38 of the Tamil Nadu Town and Country Planning Act, 1971, (Act 35 of 1972) (hereinafter referred to as "Act

35 of 1972), the property is deemed to be released from such reservation and the said finding was clearly arbitrary and illegal one in theeye of law.

7. It is to be noted that the petitioners in the writ petition/ respondents 1 to 4 were stated to be the joint owners of the property situated in old survey No.589 (Part), present T.S. No.132 of Ward D, Block No.30 of Aruppukottai Town. The first and second respondents/ petitioners had obtained their undivided one third share each under the sale deed dated 27.10.1980 and 16.2.1983 respectively. The third and fourth respondents got the remaining undivided one third share each by succession.

8. According to the Respondents, the said lands together with other adjacent lands were covered North-East Extension Town Planning Scheme Part II, Aruppukottai, sanctioned in G.O.Ms.No.434 LA dated 2.3.1969 under Section 14(3) of the Madras Town Planning Act, 1920 (Madras Act VII of 1920 – in short referred to as "Act VII of 1920") and published as per the said provisions of the Act.

9. As per the Act, the immovable property required for the scheme could be acquired under the Land Acquisition Act, 1894 (in short "the Act") and any Notification issued under Section 14 of the Act VII of 1920, is deemed to be a declaration given under Section 6 of the Act. As per t