The classification of land as an open space in approved layout and town planning schemes precedes any request for re-classification, and re-classification of land meant for an open space is impermissible.

JUDGMENT

(Prayer: Writ Petition filed under Article 226 of the Constitution of India, for issuance of a Writ of Declaration, to declare that the property of the petitioners in Survey Field No.157, Town Survey No.64/2, Old T.S.No.5, Ward F, Block No.4, measuring an extent of 8880 sq.ft. (825 sq.mtrs.), 20.55 cents, situate at Kanakampalayam Village, Udumalpet Taluk, Tiruppur District, reserved as park in the Detailed Development Plan No.2 of Udumalpet Town Development Scheme is deemed to have been released from such reservation, allotment or designation and thereby direct the first to third respondents to regularize the Plot in the above said property.)

1. Heard the learned counsel for the petitioners and the learned Additional Government Pleader for the first and second respondents and the learned counsel for the third respondent.

2. The petitioners have filed this Writ Petition for a Writ of Mandamus, to declare that the property in Survey Field No.157, Town Survey No.64/2, Old T.S.No.5, Ward F, Block No.4, measuring an extent of 8880 sq.ft. [825 sq.mts. / 20.55 Cents] situated at Kanakampalayam Vilage, Udumalpet Taluk, Tiruppur District, reserved as Park in the Detailed Development Plan No.2 of Udumalpet Town Development Scheme is deemed to have been released from such reservation, allotment or designation under Section 38 of the Tamil Nadu Town and Country Planning Act, 1971 and to direct the first to third respondent to regularize the plot in the above said property.

3. The petitioners appear to have purchased the property from their vendor S.Jayaraman vide Sale Deed dated 16.03.2012. Pursuant to the aforesaid Sale Deed, the Special Tahsildar had also issued a Joint Patta in the name of the petitioners on 12.04.2012.

4. The petitioners' vendors S.Jayaraman had earlier filed a Suit in O.S.No.90 of 2003 before Subordinate Court, Udumalpet, to partition the lan in S.F.No.157, measuring an extent of 6.43 Acres. A Preliminary Decree was passed on 23.01.2004. Thereafter, a Final Decree was passed on 29.04.2005 in I.A.No.120 of 2004 in O.S.No.90 of 2004 based on the report of the Commissioner appointed to give a report and the Surveyor Plans given by the Commissioner. Properties shown as Plots B, D, F, G, J & K in the Surveyor Plan were alloted to the petitioners' vendor.

5. As per the Final Decree dated 29.04.2005 in I.A.No.120 of 2004 in O.S.No.90 of 2004, the extent of the properties alloted to the petitioners' vendor, would have been 3.21.5 Acres, i.e. equal share out of 6.43 Acres (6.43/2). The allotment of land in proceedings before the Subordinate Court, Udumalpet was collectively registered as Document No.1031/2006, dated 07.03.2006 with the Sub-Registrar Officer, Udumalpet by the petitioner's vendor.

6. The case of the petitioners is that they had purchased a land measuring an extent of 8880 sq.ft. [825 sq.mts. / 20.55 Cents] in Plot J, alloted to the petitioners' aforesaid vendor. The petitioners have filed an application for regularization of the unapproved plot on 21.12.2017 which was acknowledged as Registration No.DTCP/0038102/2017 by enclosing all documents under G.O.(Ms) No.78, Housing and Urban Development [UD4(3)] Department, dated 04.05.2017. Meantime, “Town Planning Scheme No.2 of Udumalpet Local Planning Area” which was sanctioned by G.O.No.7, dated 04.01.1972 was varied by the “Detailed Town Development Plan” and was numbered as Map No.5, DDP(V)/DTCP No.1/2014. The said variation was published in Tamil Nadu Government Gazette Notification No.6, dated 12.02.2014.

7. It is the case of the petitioner that the property purchased by the petitioners was wrongly declared as an open space in the Detailed Development Plan No.2 dated 20.01.2014 bearing reference No.Roc.No.30205/2004/DP2 published in the Tamil Nadu Government Gazette Notification No.6, dated 12.02.2014. It is submitted that earlier the petitioners sent an objection letter to the third respondent Commissioner on 24.03.2014 in respect of the above declaration of