The main legal point established in the judgment is that under Section 38 of the Tamil Nadu Town and Country Planning Act, 1971, if the land reserved for a specific purpose is not utilized or acquired within three years, it shall be deemed to be released from such reservation.

T. Raja, J.

1. The claim of the petitioners is that the petitioners have jointly purchased the property covered in old town Survey No. 724, Survey Ward No. 2, Pollachi Town, to an extent of 1 acre (43,600 sq. ft.) on 11.09.1996. One of the joint owners of the property, namely, S. Devaseetha, relinquished her share in favour of the first petitioner. Thereafter, all of them filed a partition suit in O.S. No. 156 of 2003 on the file of the Subordinate Judge, Pollachi, whereby, a compromise decree dated 01.07.2003 was passed in I.A. No. 828 of 2003 in O.S. No. 156 of 2003 and as per the compromise decree, separate shares were also allotted to each of the parties. Subsequently, the petitioners were issued with a patta on 07.01.2004. Thereafter, the petitioners applied for building permission before the third respondent the Commissioner, Pollachi Municipality, Pollachi, on 09.03.2004, but, the same was rejected on 24.03.2004, citing a reason that the lands in question have been reserved for park in the Pollachi Town Development Planning Scheme No. 11 of Pollachi Town Development Plan. In these circumstances, the grievance of the learned counsel for the petitioners is that when the petitioners, right from the date of purchase of the property on 11.09.1996, have been in possession and enjoyment of the properties, without there-being any notice whatsoever, it is not open to the third respondent to say that the properties covered in Survey No. 724 have been reserved for Park in the Pollachi Town Development Planning Scheme No. 11 of Pollachi Town Development Plan.

2. In his further submissions, by referring to a Section 38 of the Tamil Nadu Town and Country Planning Act, 1971 (in short Act), learned counsel contended that as per Section 38 of the Act, if steps for the acquisition of the lands which are required for any plan, are not taken within a period of three years from the date of notice of preparation of plans by declaration as provided in sub-section 2 of Section 37 in respect of the land reserved, or if such lands are not acquired by agreement, within 3 years from the date of publication of the notice in the Tamil Nadu Government Gazettee under Section 26 or Section 27, such lands shall be deemed to have been released from acquisition. By citing the above said mandatory provision, he contended, in the case on hand, the respondents have not complied with the conditions found in Section 38 of the Act. Concluding his argument, learned counsel by heavily emphasising on the proviso of Section 37(2) of the Act, which mandates the respondents to make a declaration under the provisions of the Land Acquisition Act within three years from the date of notice issued under Section 26 or Section 27 of the Act, submitted that, in the present case, there is no semblance of initiation made by the respondents as provided under Section 6 of the Land Acquisition Act in respect of the petitioners land, within a period of three years from the date of notice issued under Section 26 on 07.10.2002 or under Section 27 on 09.04.2003. Even in the counter affidavit, the respondents are maintaining absolute silence as to whether any steps have been taken to acquire the land under the land acquisition proceeding as contemplated under Sections 37 and 38 of the Act, therefore, the properties deemed to have been released from such reservation, allotment or designation as Park.

3. In support of his submissions, he has also relied upon a judgment of this Court in the case of Casa Granade Private Limited vs. Chennai Metropolitan Development Authority, (2007) 3 MLJ 647 for a proposition that although a State can prepare development plan covering the private lands, but, no development plan can be made on that land unless the private land is acquired for development purpose.

4. He has also relied upon yet another judgement in the case of K.S. Kamakshi Chetty and others vs. Commissioner, Aruppukottai Municipality and another, (2008) 2 MLJ 184 to contend that