Madras High Court
Mr.D.H.Sarath K.Kumar vs The Government Of Tamil Nadu on 30 April, 2008
Author: P.Jyothimani
Bench: P.Jyothimani
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:30.04.2008 CORAM: THE HON'BLE MR. JSUTICE P.JYOTHIMANI WRIT PETITION NOS.37187 and 37793 of 2007 and other connected miscellaneous petition. 1.Mr.D.H.Sarath K.Kumar 2.Mr.D.Venkaatesh 3.Mr.D.N.Choudery .. Petitioners in both the Wps. vs. 1.The Government of Tamil Nadu rep. by its Secretary to Government Housing and Urban Development Department, Fort St.George Chennai 600 009. 2.Chennai Metropolitan Development Authority (CMDA) rep. by its Member Secretary Thalamuthu Natarajan Building No.1, Gandhi Irwin Road Chennai 600 008. .. Respondents 1 & 2 in both the Wps. 3.Karapakkam Village Panchayat rep. By its President No.1/101, Gangai Amman Koil Street Karapakkam, Off Old Mahabalipuram Road Chennai 600 097. 4.Sholinganallur Town Panchayat rep. By its President Old Mahabalipuram Road Next to Indian Bank Sholinganallur, Chennai 600 119. 5.Chettinad Builders Pvt. Ltd. Rep. By its Manager No.603, Rani Seethai Hall 3rd Floor, Chennai 600 006. .. Respondents 3 to 5 in WP.No.37793 of 2007. For petitioners : Mr.Sriram Panchu,Sr.Counsel for Mr.G.Swaminathan For respondents : Mr.N.Senthilkumar Government Advocate for R.1 in both the WPs. Mr.C.Kathiravan for R.2 in both the WPs. Mr.K.Elango for R.4 in WP.No.37793 of 2007. No appearance for R.3 and R.5 in WP.37793/07 .. COMMON ORDER
Both the writ petitions are filed by the same petitioners. While W.P.No.37187 of 2007 is filed challenging the proceedings of the second respondent, Chennai Metropolitan Development Authority (CMDA) dated 3.07.2007, refusing to grant planning permission to the petitioners and consequently to direct the CMDA to grant planning permission under the Tamil Nadu Town and Country Planning Act,1971 to the petitioners to their project at Survey Nos.167/2C, 3C, 2D, 3D, 2E, 3E1, 1C, 1J, 1K, 1M1, 1M2, 2E2, 3E2 of Karapakkam Village, Old Mahabalipuram Road, the other writ petition, viz., W.P.No.37793 of 2007, is for direction against the respondents, particularly with reference to the Government and CMDA, not to include the said property of the petitioners comprised in the above said Survey Numbers in the proposed 200 feet road in the new Master Plan for the Chennai Metro area and the concerned detailed development plan.
2. The petitioners, who are the brothers are joints owners of the property measuring an extent of 3.45 acres comprised in the above survey numbers in Karapakkam Village, Old Mahabalipuram Road (OMR). The petitioners came to know that OMR is being developed into an Information Technology Highway, there was a proposal for Outer Ring Road (ORR) passing through OMR connecting the East Coast Road (ECR). Therefore, before purchasing the property in the above said survey numbers, in order to get clarified as to whether the said property would be covered under any acquisition proposal and with that view the second petitioner by his letter dated 04.04.2002 addressed to the Member Secretary, CMDA for issuance of No Objection Certificate for the development of the land at Survey No.167 Karapakkam Village, Old Mahabalipuram Road, indicating various survey numbers under which the property is proposed to be purchased.
2(a). The second respondent, by letter dated 28.05.2002 has requested the second petitioner to furnish the authenticated FMB sketch in respect of the property sought to be purchased for giving correct information and accordingly, by letter dated 10.06.2002, the second petitioner has produced the FMB sketch. After verification of the same, the second respondent by letter dated 01.08.2002, communicated to the second petitioner that the above said survey numbers lie in General Industrial Use Zone and the revised Outer Ring Road alignment is not passing through Karapakkam Village.
2(b). It was, after the said communication from the second respondent, the petitioners have completed the sale transaction, by purchasing the property in the above said survey numbers under 4 sale deeds on 24.10.2002, 15.12.2002, 05.03.2003 and 24.03.2003. Thereafter, on 12.12.2003, the petitioners have submitted an application to the second respondent for sanctioning of the proposal for development of a commercial office building in the above said site and the petitioners also paid Rs.14,200/- towards scrutiny fees along with the application, and thereafter, several documents required by the second respondent were furnished.
2(c). As a temporary measure, the petitioners have put up a temporary asbestos roofing in the above said property and let out to a Company owned by them to stock marbles and granites. Based on the subsequent advise of the architects, the original scheme for commercial office building which was pending with the second respondent, was modified for treating it as a proposal for Information Technology Park ("IT Park") expressing willingness to effect necessary changes, and fresh proposal was sent along with scrutiny fees. At request of the second respondent, the petitioners have also obtained clearance certificate from the Electronics Corporation of Tamil Nadu Limited (ELCOT), which was required by the second respondent as a mandatory.
2(d). The ELCOT, by a letter dated 15.06.2004, informed the second respondent that the petitioners have fulfilled the conditions required for IT Park and are eligible for extra FSI as laid down in I.T. Policy of Tamil Nadu,2002 and the copy of the same has been sent to the petitioners also. It was based on the said letter of the ELCOT dated 15.06.2004, the petitioners sent the proposal with necessary documents seeking planning permission. However, by letter dated 19.10.2004, the second respondent has refused to accept the said proposal stating that the site is affected by ORR alignment. Later, the petitioners were orally informed by the second respondent that the said 400 feet proposed road was dropped by the Government due to objections from public.
2(e). It is also the case of the petitioners that the Road Development Corporation has also recommended that the proposed 400 feet Outer Ring Road would be superfluous as there were already 2 roads, one in Thorapakkam (Pallikaranai to OMR) and the other at Sholinganallur (Medavakkam to OMR to ECR) giving proper connecting roads between OMR and ECR. Accordingly, the first petitioner was advised to submit fresh proposal after the 400 feet Outer Ring Road proposal is dropped. The petitioners, later, written to the Road Transport Corporation, for which there was no reply. In the meantime, by letter dated 28.12.2005, ELCOT has communicated the petitioners, requesting details, such as stage of construction, expected date of completion, etc. by referring to the No Objection Certificate dated 15.06.2004, issued for construction of I.T. Building. Thereafter, the petitioners have submitted application to the second respondent on 27.03.2007, seeking approval of planning permission for the proposed IT Multi-storied building at the above said site along with sum of Rs.73,132/- towards scrutiny fees, by complying with various other items informed by the second respondent in the earlier rejection letter issued in 2004.
2(f). It is the case of the petitioners that new Draft Master Plan has been released and as expected by the petitioners, the said 400 feet ORR has been dropped. Public hearing was conducted by the second respondent in Sholinganallur regarding the proposed changes in the plan for Karapakkam village. The petitioners learnt that 400 feet ORR was dropped, however, the petitioners understood that the 400 feet road has been reduced to 200 feet road only to service about three plots in the ELCOT Special Economic Zone situated behind the petitioners plot. Normally, only after the new Draft Master Plan is approved by the Government, the process of delineating the road alignment and identifying the area of road would be made. However, in the public hearing the petitioners were informed by some of the authorities of the second respondent that new 200 feet road would pass through a portion of their property and asking them to file their objections immediately. Thereafter, the petitioners have given their objections stating that there is already 200 feet wide Sholinganallur Medavakkam High Road in existence just 500 metres away from the proposed road, apart from 200 feet Thorapakkam Velachery Road just 3 kms. away from 200 feet road. The petitioners also requested the second respondent to ensure that the 200 feet road would not pass through their property, which was received by the Deputy Planner, Detailed Development Plan Unit of the second respondent on 18.05.2007, for which no reply has been given.
2(g). It was thereafter, by the impugned order dated 31.07.2007, the second respondent has refused planning permission for the proposal submitted by the petitioners. The petitioners have informed the second respondent that even though the Master Plan for 400 feet ORR was dropped, only after obtaining No Objection Certificate from the second respondent, they have purchased the property and requested the second respondent to recall the said order of refusal of planning permission. Since the same has not yielded any result, the petitioners challenged the impugned order of the second respondent by filing these writ petitions.
2(h). The impugned order of the second respondent is challenged on various grounds including that the second respondent having given a letter stating that the properties sought to be purchased by the petitioners are not covered by 400 feet ORR alignment, they cannot now go back and hence the doctrine of equity and promissory estoppel applies to the case of the petitioners. It is also challenged on the ground of discrimination, viz., that the second respondent has intimated one J.Ravi, who wanted to purchase the next plot of the petitioners stating that Survey Nos.167/2, 167/3, 168/8A of Karapakkam Village and Survey No.602/A of Sholinghanallur village are affected by ORR Road alignment and based on which the said Ravi has not purchased the property, however, construction has been put up on the said adjoining land. Therefore, the targeting of the petitioners alone is discriminatory and arbitrary in nature.
2(i). It is also stated that the lands behind the petitioners plots were also developed by ELCOT as Special Economic Zone and Companies like Wipro, Satyam and HCL have been allotted vast extent of land and rapid constructions have been put up and therefore, there is no possibility of 400 feet Outer Ring Road at all and according to the petitioners that in spite of dropping of the said 400 feet ORR, the second respondent has refused planning permission to the petitioners.
2(j). It is the case of the petitioners that the existing road connecting OMR and Sholinganallur is being widened into 400 feet road and therefore, there is no necessity to interfere with the properties of the petitioners. Inasmuch as the Government has not yet approved the said 200 feet road, it is not open to the second respondent to reject the planning permission for the petitioners. It is also stated that if at all there is a need to provide a road for the I.T. Companies in the ELCOT special Economic Zone, the same can be achieved by providing a 100 feet wide road through the property belonging to the petitioners neighbour.
2(k). It is also the case of the petitioners that the 200 feet road itself is unnecessary and even if the proposed 200 feet road is approved by the first respondent, Government, it can still be done without affecting the petitioners property. Since the petitioners have purchased the property as per the No Objection Certificate given by the second respondent, they are entitled for protection on the principles of equity. In view of the same, the writ petitions are filed challenging the impugned order of the second respondent by which the planning permission proposal given by the petitioners was refused and also for direction against respondents 1 and 2, viz., the Government and CMDA not to include the petitioners property stated above in the new Master Plan for Chennai Metropolitan area and the concerned detailed development plan.
3. The second respondent has filed a common counter affidavit. It is the case of the second respondent, CMDA that while denying the various averments made by the petitioners in the affidavit filed in support of the writ petitions, it is the case of the second respondent that in the Master Plan for Chennai Metropolitan area, Ring Roads were proposed, the Outer Ring Road is one such road proposed in the First Master Plan with right of way of 400 feet. The proceedings of acquisition of land in the stretch between Grand Southern Trunk Road (GST) in the South West and Thiruvottiyur Ponneri Panchetty Road in the North has already been taken up and the acquisitions are expected to be completed by the end of 2008 and action is being taken through Tamil Nadu Road Sector Project. In respect of the South stretch between GST Road and OMR, acquisition by Highways Department is in progress.
3(a). It is the case of the second respondent that originally in the Master Plan, 400 feet wide alignment was proposed between MBI Road junction at Medavakkam to OMR and in the second Master Plan its width was reduced to 200 feet, however, as far as the alignment, there was no change in the private land. It is the further case of the second respondent that the central line is kept intact, the width proposed for reduction from 200 feet to 100 feet on either side by introducing a smooth curve in Pallikaranai and Sholinganallur stretch, pushing its alignment to the northern edge of Special Economic Zone on Government lands without changing the alignment in the private lands. It is also the case of the second respondent that as far as the petitioners land is concerned, the central line of it remains the same while the extent of land affected in the petitioners property was originally 200 feet, which has been reduced to 100 feet width, releasing about 50% of the land because of reduction in width proposed in the second Master Plan. As far as the letter of CMDA dated 01.08.2002, it is the case of the second respondent that the said letter is not available and the same was destroyed by efflux of time.
3(b). It is the further case of the second respondent that actually the ORR alignment of first Master Plan was revised only for the stretch between the GST Road and TPP Road and not in the second stretch, wherein the petitioners site is situated. In the letter dated 01.08.2002, it is found to have stated that the revised ORR was not passing through Karapakkam village, which according to the second respondent may be true as revised alignment does not pass through, but the original alignment remains in the same village. It is also denied that the petitioners have purchased the property after clearance from CMDA. The petitioners application for construction of stilt + 3 floor IT building filed in June,2004 was examined and planning permission application was already rejected on 19.10.2004 itself for the main reason that the proposed development falls in the land reserved for ORR alignment apart from other technical reasons. It was thereafter, the petitioners once again applied for multistoried construction with basement + ground floor + 7 floor buildings for office use in April,2007. The defects including that violation of the proposed construction in the alignment of 400 feet ORR was stated while refusing the application on 31.07.2007.
3(c). The No Objection Certificate obtained by the petitioners from ELCOT is only for the purpose of showing that the proposal for I.T. Development is proper in respect of considering the floor space index and ELCOT does not examine any Town Planning or Development Control Rules. Therefore, the letter of the ELCOT itself does not give any right to the petitioners to obtain planning permission. The second Master Plan was published in the Government gazette on 11.04.2007 and the process was on till 31.08.2007. It was made known to the public that the proposal for reduction of ORR width from 400 feet to 200 feet keeping intact of the central line. It is admitted that the petitioners have given suggestion to drop the 200 feet wide road and the same was examined by the Transport Committee constituted for the purpose of examining objections and suggestions and recommended that the suggestion is not acceptable and the road under reference had strategic importance and according to the second respondent the road is necessary for the purpose of relieving traffic congestion.
3(d). The impugned proceedings of the CMDA is in accordance with law and the planning permission applied by the petitioners was refused due to the said reason. It is also stated that as far as the construction of the 5th respondent M/s.Chettinad Builders Pvt. Ltd., by inspection on 06.02.2007, it was found that the construction was unauthorised and stop work notice has already been given and subsequently demolition notice was also issued on 13.03.2007 for the unauthorised construction of ground floor + one floor. The case has been referred to the local authority for taking necessary action. It is the case of the second respondent that the petitioners property was affected by the ORR in the first Master Plan, which is now in force and also in the draft second Master Plan forwarded to the Government. According to the second respondent CMDA has acted as per law and passed the refusal order. It is also stated that as against the refusal order, the petitioner has got right of appeal under Section 79 of the Tamil Nadu Town and Country Planning Act,1971.
4. It is the contention of Mr.Sriram Panchu, learned senior counsel for the petitioners that the purchase of property by the petitioners itself was only based on the clarification issued by the second respondent in no uncertain terms and it is not open to the second respondent now to go back by refusing planning permission. He would also rely upon the judgement of the Supreme Court in Chairman, Indore Vikas Pradhikaran vs. Pure Industrial Coke and Chemicals Ltd., and others (2007 (8) SCC 705) to substantiate his contention that right to property is not only a constitutional right, but also human right and in respect of town planning developments there is a need to balance both public and private interest since that deals with the valuable rights of citizens. In order to substantiate his contention on the point of promissory estoppel, he would rely upon the judgement of the Full Bench of this Court in Vairavikulam Lime Products Private Ltd., vs. Government of India (2006 (3) CTC 609), apart from the judgement of the Supreme Court in Pawan Alloys & Casting Pvt., Ltd. vs. U.P.State Electricity Board (1997 (7) SCC 251). Further, to substantiate his contention of legitimate expectation, principles of applicability and promissory estoppel he would rely upon the judgement of the Supreme Court in Hira Tikkoo vs. Union Territory, Chandigarh (2004 (6) SCC 765). He would also submit that the Town Planning Regulations are regulatory in nature and in respect of grant of permission for construction of building, the same has to be decided as per law applicable on the day when such permission is granted by relying upon the judgement of the Supreme Court in T.Vijayalakshmi vs. Town Planning Member and another (2006 (8) SCC 502).
5. On the other hand, Mr.Kathiravan, learned counsel appearing for the second respondent CMDA has submitted that there is no detailed development plan. It is his further submission that as far as the No Objection Certificate granted by ELCOT is concerned, it is only in relation to the requirement for putting up of IT park and the same has nothing to do with the construction activities, which are governed under the Tamil Nadu Town and Country Planning Act and in any event, according to the learned counsel, the recommendations of the ELCOT will be taken into consideration for the purpose of giving FSI benefits to the petitioners. It is his further submission that the first Master Plan by which 400 feet width road was effected and the central line which has been marked has not been changed by the second proposed Master Plan, by which the width of the road is sought to be reduced to 200 feet taking 100 feet on each of the central line, which is already in existence.
6. I have heard learned senior counsel for the petitioners and learned counsel for the respondents and perused the records.
7. It is seen in the impugned order of the second respondent dated 31.07.2007 that the petitioners have given a revised plan for approval for construction of basement floor + stilt + 7 floors of ITES building. The main reason for refusal of planning permission given by the second respondent is "the proposed 400 feet wide Outer Ring Road alignment passes through the site under reference". This is sought to be challenged by the petitioners. It is also seen in the impugned order that as against the said order an appeal can be preferred to the Government by furnishing a copy of such appeal to CMDA and that is the statutory appeal provided under Section 79 of the Tamil Nadu Town and Country Planning Act,1971 ( in short, "the Act"). The appellate authority being the Commissioner and Secretary to Government, Housing and Urban Development Department, and the appeal has to be filed within two months from the date of the rejection letter.
8. Section 49 of the Act which forms part of Chapter VI deals with Control of Development and use of land enables any person not being a State Government, etc. to make an application in writing to the appropriate planning authority for permission to carry out any development on any land or building and it is open to the appropriate authority to either grant or refuse such permission, however, when the permission is refused, the reason must be recorded. Section 49 of the Act reads as under:
" 49. Application for permission.-
(1) Except as otherwise provided by rules made in this behalf, any person not being any State Government or the Central Government or any local authority intending to carry out any development on any land or building on or after the date of the publication of the resolution under sub-section (2) of Section 19 or of the notice in the Tamil Nadu Government Gazette under section 26, shall make an application in writing to the appropriate planning authority for permission in such form and containing such particulars and accompanied by such documents as may be prescribed.
(2) The appropriate planning authority shall, in deciding whether o grant or refuse such permission, have regard to the following matters, namely:-
(a) the purpose for which the permission is required;
(b) the suitability of the place for such purpose;
(c) the future development and maintenance of the planning area.
(3) When the appropriate planning authority refused to grant a permission to any person, it shall record in writing the reasons for such refusal and furnish to that person, on demand, a brief statement of the same."
8. Likewise, Section 54 of the Act also enables the appropriate planning authority to revoke or modify any planning permission for development already granted.
Section 79 (1) of the Act enables a person aggrieved by a decision taken by the appropriate planning authority either under Section 49 or under Section 54 (1), to file an appeal to the prescribed authority and in the present case, the impugned order itself indicates that the prescribed appellate authority is Government represented by the Commissioner and Secretary, Housing and Urban Development Department.
Section 79 of the Act contemplates the appellate authority to grant proper opportunity to the appellant while dealing with appeal. The said section makes the order of the appellate authority as final. The said Section reads as under:
" 79. Appeal to the prescribed authority.-
(1) Any person aggrieved by any decision or order of the planning authority under section 49 or sub-section (1) of section 54 may appeal to the prescribed authority.
(2) An appeal under sub-section (1) shall be preferred within two months from the date on which the decision or order was communicated to him in the manner prescribed, but the prescribed authority may admit an appeal preferred after the said period of two months if it is satisfied that the appellant had sufficient cause for not preferring the appeal within the said period.
(3) In disposing of an appeal, the prescribed authority may, after giving the parties an opportunity of making their representations, pass such order thereon as the prescribed authority may deem fit.
(4) The decision or order of the prescribed authority on such appeal shall be final.
(5) The prescribed authority may pass such interlocutory orders pending the decision on such appeal as the prescribed authority may deem fit.
(6) The prescribed authority may award costs in proceedings under this section to be paid either out of the Fund Account or by such party to such appeal as the prescribed authority may deem fit."
9. Even though in the impugned order while rejecting the planning permission, the CMDA has informed that there is a proposed 400 feet ORR, which runs through the properties of the petitioners, as it is seen in the counter affidavit filed by the second respondent in these writ petitions, it is clear that the said 400 feet ORR alignment was based on the first Master Plan and subsequently, the same has been revised and a fresh proposal has been given by way of a second Master Plan by reducing 400 feet width to 200 feet width. However, it is categorically stated by the second respondent CMDA that the central line of the proposed road remains the same. In fact, the case of the CMDA is that whether it was 400 feet or 200 feet width, the central line being the same, which runs through the property of the petitioners, for which planning permission has been sought for, only the extent of land on both the sides belonging to the petitioners are going to be affected. The second respondent in the counter affidavit has stated that by the proposal in the second Master Plan by way of revision, 50% of the property of the petitioners alone is likely to be affected by the second Master plan while compared to the first Master Plan. The learned counsel for the second respondent has also produced the proposed new Master Plan as well as the old Master Plan in respect of the area concerned, which makes it clear that the stand taken by the second respondent that the central line of the proposed road passes through the land in question is correct.
10. Section 17 of the Act enables the appropriate planning authority to prepare Master Plan after consulting the regional planning authority and the local authorities concerned and submit the same to the Government. Such Master Plan shall provide various matters as explained under Section 17(2) of the Act, which reads thus:
" 17.Master Plans.-
(1) .........
(2) The maser plan may propose or provide for all or any of the following matters, namely:-
(a) the manner in which the land in the planning area shall be used;
(b) the allotment or reservation of land for residential, commercial, industrial and agricultural purposes and for parks, play-fields and open spaces;
(c) the allotment and reservation of land for public buildings, institutions and for civic amenities;
(d) the making of provision for national highways, arterial roads, ring roads, major streets, lines of communication including railways, airports and canals;
(e) the traffic and transportation pattern and traffic circulation pattern;
(f) the major road and street improvements;
(g) the areas reserved for future development, expansion and for new housing;
(h) the provision for the improvement of areas of bad lay out or obsolete development and slum areas and for relocation of population;
(i) the amenities, services and utilities;
(j) the provision for detailed development of specific areas for housing, shopping, industries and civic amenities and educational and cultural facilities;
(k) the control of architectural features, elevation and frontage of buildings and structures;
(l) the provision for regulating the zone, the location, height, number of storeys and size of the yards and other open spaces and the use of buildings, structures and land;
(m) the stages by which the master plan shall be carried out; and
(n) such other matters as may be prescribed."
11. After such Master Plan is prepared and submitted to the Government, it is open to the Government to give consent for publication of notice of preparation of plan as contemplated under Section 24 of the Act. Such consent can be given by the Government even after such modification of the Master Plan. Section 24 stands as under:
" Section 24. Consent of Government to the publication of notice of preparation of plans.-
(1)As soon as may be, after the regional plan, the master plan or the new town development plan has been submitted to the Government, but not later than such time as may be prescribed, the Government may direct the appropriate planning authority to make such modifications in the regional plan, the master plan or the new town development plan, as they think fit and thereupon the appropriate planning authority shall make such modifications and resubmit it to the Government.
(2) The Government shall, after the modifications, if any, directed by them, have been made, give their consent to the appropriate planning authority to the publication of a notice under section 26 of the preparation of the regional plan, the master plan or the new town development plan."
After such consent is received from the Government, the appropriate planning authority publishes notice in the Tamil Nadu Government gazette inviting objections and suggestions from any person within the prescribed period as it is seen under Section 26 of the Act, and after considering the objections, the Government grants approval under Section 28 of the Act.
12. In the present case, according to the second respondent, a fresh proposal in the form of second Master Plan has been submitted to the Government, which includes the reduction in width of the ORR from 400 feet to 200 feet and as it is seen in the counter affidavit the said second Master Plan is yet to be approved by the Government, which can be done only after calling for objections from the affected parties after publishing the notice.
13. In view of the specific stand taken by the second respondent in the counter affidavit that the revised second Master Plan as against the first Master Plan is pending with the appropriate planning authority, viz., the first respondent and others, which has to be implemented only after such Master Plan is approved, especially in the circumstances that the petitioners being the persons affected have a right to make objections when such second Master Plan is to be considered by the Government, the contention of the learned senior counsel for the petitioners that the impugned order of rejection cannot be given effect to is certainly reasonable.
14. On a perusal of the entire factual situation as enumerated above, it is clear that the petitioners have made application for permission on many occasions for the purpose of granting planning permission regarding the proposed construction in the lands stated above. It is also seen that the petitioners have applied to the second respondent by letter dated 04.04.2002 to inform about the proposal for ORR expansion etc. and issue No Objection Certificate at the earliest point of time. Thereafter, the second respondent has called for authenticated FMB sketch for taking a decision which has been sent by the petitioners and the Member Secretary of the second respondent, which is the authority created in law for the purpose of development of Chennai Metropolitan Area who by his letter No.A4/21100/02 dated 01.08.2002 in clear term has informed that the said survey numbers are lying within the general industrial zone and the revised ORR alignment is not passing through Karapakkam village. The said letter of the second respondent is as follows:
" With reference to your letter cited, you are informed that, the S.No.167/1M1, 1M2, 1J, 1K, 167/2C, 2D, 2D1, 2E2, 167/3C, 3D, 3E1, 3E2 of Karapakkam village lies in General Industrial use zone. The revised Outer Ring Road alignment is not passing through Karapakkam village."
15. In view of such categoric stand taken by the second respondent in 2002 with specific reference to the survey numbers of the properties of the petitioners, if it is the stand of the second respondent that thereafter the second Master Plan has been given by way of approval, it is not known as to how the impugned order came to be passed on a ground which is totally opposed to the specific stand of the second respondent for rejecting the planning permission. The letter dated 01.08.2002 given by way of clarification is certainly a statutory function performed by the authority created under law and therefore, it cannot be slightly brushed aside simply because the second respondent has chosen to state in the counter affidavit that the papers have been destroyed especially when it is admitted that the proposal in respect of the said road is still pending. But in the present case, it is admitted that in respect of the draft second Master Plan, after notice was published in the Government gazette on 11.04.2007, the process of public consultation took place up to 31.07.2007, which is as per the Tamil Nadu Town and Country Planning Act,1971 and objections were heard and thereafter, the entire matter has been placed before the Government for final orders. In such circumstances even assuming that in the year 2002, viz., on 01.08.2002, the second respondent has informed the petitioners that there was no proposal of road passing through the land of the petitioners under the said Outer Ring Road, which is certainly binding upon the second respondent, the second respondent is entitled under the provisions of the Tamil Nadu Town and Country Planning Act,1971 to have a fresh Master Plan as per the provisions stated above. Therefore, when the second respondent subsequent to the earlier letter dated 2002, has prepared a revised Master Plan, equally it is clear that the previous letter of the second respondent dated 01.08.2002 cannot stand in the way of the second respondent in preparing a revised second Master Plan. In such circumstances when it is not in dispute that the petitioners have brought out their objections to the Government, viz., the first respondent explaining the necessity for dropping such a proposal for Outer Ring Road, on materials placed to the Government, pending such final order by the Government, it should have been only proper on the part of the second respondent in not hurriedly coming to the conclusion in refusing to grant planning permission based on the original proposal of 400 feet wide Outer Ring Road alignment.
16. It is in this aspect relevant to consider the submission of the learned senior counsel for the petitioners that when the authority contemplated under the Tamil Nadu Town and Country Planning Act,1971 viz., Government, is yet to pass final orders as per the revised second Master Plan submitted by the second respondent, the second respondent before passing the impugned order ought to have considered the valuable right of the petitioners since in any event unless and until the Master Plan is granted approval by the Government, the second respondent cannot implement the Scheme regarding the Outer Ring Road itself. The necessity of considering the rights of individual citizens as provided under Article 300A of the Constitution of India has been elaborately dealt with by the Hon'ble Supreme court in the case of Chairman, Indore Vikas Pradhikaran vs. Pure Industrial Coke & Chemicals Ltd., (2007 (8) SCC 705) in the following words:
" 43. There are two competing interests viz. one, the interest of the State vis-`-vis the general public and, two, to have better living conditions and the right of property of an individual which although is not a fundamental right but is a constitutional and human right.
44. Before we embark upon the questions involved in these appeals, we would like to make some general observations.
45. Town and country planning involving land development of the cities which are sought to be achieved through the process of land use, zoning plan and regulating building activities must receive due attention of all concerned. We are furthermore not oblivious of the fact that such planning involving highly complex cities depends upon scientific research, study and experience and, thus, deserves due reverence.
46. Where, however, a scheme comes into force, although it may cause hardship to the individual owners as they may be prevented from making the most profitable use of their rights over property, having regard to the drastic consequences envisaged thereunder, the statute should be considered in such a manner as a result whereof greater hardship is not caused to the citizens than actually contemplated thereby. Whereas an attempt should be made to prevent unplanned and haphazard development but the same would not mean that the court would close its eyes to the blatant illegalities committed by the State and/or the statutory authorities in implementation thereof. Implementation of such land development as also building laws should be in consonance with public welfare and convenience. In United States of America zoning ordinances are enacted pursuant to the police power delegated by the State. Although in India the source of such power is not police power but if a zoning classification imposes unreasonable restrictions, it cannot be sustained. The public authority may have general considerations, safety or general welfare in mind, but the same would become irrelevant, as thereby statutory rights of a party cannot be taken away. The courts must make an endeavour to strike a balance between public interest on the one hand and protection of a constitutional right to hold property, on the other.
47. For the aforementioned purpose, an endeavour should be made to find out as to whether the statute takes care of public interest in the matter vis-`-vis the private interest, on the one hand, and the effect of lapse and/or positive inaction on the part of the State and other planning authorities, on the other.
48. The courts cannot also be oblivious of the fact that the owners who are subject to the embargos placed under the statute are deprived of their valuable rightful use of the property for a long time. Although ordinarily when a public authority is asked to perform statutory duties within the time stipulated it is directory in nature but when it involves valuable rights of the citizens and provides for the consequences therefor it would be construed to be mandatory in character."
17. The said judgement of the Supreme Court has been subsequently affirmed in M.Naga Venkata Lakshmi vs. Viskhapatnam Municipal Corporation and another (2007 (8) SCC 748). Therefore, considering the admitted fact of pendency of approval by the Government in respect of the second Master Plan, I am of the considered view that before such final order is passed by the Government, it is not open to the second respondent to pass the impugned order by hurriedly coming to the conclusion stating that 400 feet Outer Ring Road is crossing the petitioners property forgetting the fact that ultimately the Government may accept the reasoning of the petitioners while passing final orders as per the Act.
18. As far as the next contention raised by the learned senior counsel about estoppel either promissory or otherwise on the part of the second respondent, I do not accept the said contention for the reason that even assuming that the second respondent has through its Member Secretary given such letter on 01.08.2002, stating that no such road is proposed in the said Karapakkam village, as I have stated earlier, law does not prohibit the second respondent from framing the subsequent Master Plan which has been in fact done in this case in 2007 and therefore, there can be no estoppel based on the letter of the second respondent of the year 2002 for the subsequent proposal of the revised Master Plan. Therefore, that cannot be a ground for the purpose of giving direction to the respondents to take a decision in not approving either 400 feet or 200 feet width Outer Ring Road before the Government passes order on the revised second Master Plan as per the Tamil Nadu Town and Country Planning Act,1971.
In view of the same, the impugned order of the second respondent dated 31.07.2007 challenged by the petitioners in WP.No.37187 of 2007 refusing planning permission is set aside with direction to consider the proposal of the petitioners for planning permission after the final orders passed by the Government in respect of the second Master Plan. It is also made clear that the first respondent, Government, while passing final order as per the second Master Plan proposed by the second respondent shall take into consideration the objections made by the petitioners in respect of formation of 200 feet width Outer Ring Road proposed between MBI Road Junction at Medavakkam to Old Mahabalipuram Road in so far as it is stated to pass through the lands of the petitioners comprised in Survey Nos.167/2C, 3C, 2D, 3D, 2E, 3E1, 1C, 1J, 1K, 1M1, 1M2, 2E2, 3E2 of Karapakkam Village, Old Mahabalipuram Road and also take into consideration the various objections raised by the petitioners in these writ petitions, and pass appropriate final orders giving liberty to the petitioners to work out their remedy against such final order that may be passed by the first respondent Government under the provisions of the Tamil Nadu Town and Country Planning Act,1971.
The writ petitions are disposed of accordingly. No costs. Connected miscellaneous petitions are closed.
Index:Yes
Internet:Yes
kh 30.04.2008
To
1.The Secretary to Government
Government of Tamil Nadu
Housing and Urban Development
Department, Fort St.George
Chennai 600 009.
2.The Member Secretary
Chennai Metropolitan Development
Authority (CMDA)
Thalamuthu Natarajan Building
No.1, Gandhi Irwin Road
Chennai 600 008.
3.The President
Karapakkam Village Panchayat
No.1/101, Gangai Amman Koil Street
Karapakkam, Off Old Mahabalipuram Road
Chennai 600 097.
4.The President
Sholinganallur Town Panchayat
Old Mahabalipuram Road
Next to Indian Bank
Sholinganallur, Chennai 600 119.
P.JYOTHIMANI,J.
P.D.Common Order in
W.P.Nos.37187 & 37793 of 2007
Dated:30.04.2008