Madras High Court
Hajee Moosa Sulaiman Sait And Ors. vs State Of Tamil Nadu Represented By Its ... on 25 June, 1990
Equivalent citations: (1991)493MLJ1
JUDGMENT Nainar Sundaram, J.
1. There are four writ appeals. The controversy relates to the multi-storeyed constructions that are being done by Mr. Abdul Khader Yunus at Door Nos. 10 and 11, Haddows Road, Madras. Mrs. Nalini Chidambaram, owner of Door No. 16, Pycrofts Garden Road, Madras; Mr. Hajee Moosa Sulaiman Sait, owner of Door No. 9, Haddows Road, Madras; and Mr. Ponniah, owner of Door No. 12, Pycrofts Garden Road, Madras, all neighbours of Mr. Abdul Kliader Yunus, are objecting to the multi-storeyed constructions of the latter. In view of the, scope of the points urged before us, instead of doing a filigree or trellis work of the facts of the case in the body of the judgment itself, we propose to and we do annex to it copies as per the relevant records made available to us; and they shall speak for themselves. Mr. Abdul Khader Yunus sought permission to put up a multi-storeyed building, consisting of ground floor plus ten floors (residential flats) at Door Nos. 10 and 11, Haddows Road, Madras. The Madras Metropolitan Development Authority, hereinafter, for brevity, called the MMDA, and which is the appropriate planning authority under the Tamil Nadu Town and Country Planning Act, 1971 (Tamil Nadu Act 35 of 1972), hereinafter referred to as the Act, by its communication dated 14.1.1988, pointing out violation of the Special Rules for multi-storeyed buildings of the Development Control Rules under the Act, refused the planning permission (Annexure 'A'). On 20.1.1989, Mr. Abdul Khader Yunus preferred an appeal to the Honourable Minister for Housing, Government of Tamil Nadu, hereinafter referred to as the Government (Annexure 'B'). On the same day, the Government called for the remarks of the MMDA. On 17.2.1988, the MMDA wrote to the Government, offering its remarks (Annexure 'C). On 22.2.1988, the Government wrote to Mr. Abdul Khader Yunus, bringing to his notice the remarks of the MMDA and gave him an opportunity to make further representations (Annexure 'D'). On 23.3.1988, Mr. Abdul Khader Yunus made further representations to the Government (Annexure 'E'). On 11.5.1988, Mr. Abdul Khader Yunus wrote to the Government for the proposed Ground Plus seven floors (Annexure 'F). On 2.6.1988, the Government wrote to Mr. Abdul Khader Yunus to submit revised proposal for Ground floor plus seven floors (Annexure 'G'). Again on 2.6.1988, Mr. Abdul Khader Yunus wrote to the Governm&nt asking for consideration of his request for planning permission for Ground Floor plus seven floors (Annexure 'H'). On the same day, the Government wrote to the MMDA calling for its remarks on the revised plans (Annexure T). On 19.7.1988, Mr. Abdul Khader Yunus wrote to the Government undertaking to provide an access of 7.2 meters as per the rules before the completion of the proposed building (Annexure T). On 28.6.1988, the MMDA wrote to the Government offering remarks on the revised proposal (Annexure 'K'). On 3.8.1988, the Government wrote to the MMDA as per Annexure 'V.J. On 1.9.1988, the MMDA wrote to the Government as per Annexure M. On 7.9.1988, MrAbdul Khader Yunus, wrote to the Government as per Annexure 'N'. On 29.6.1988, the Government passed the order in G.O.Ms. No. 1293, Housing and Urban Development Department, hereinafter referred to as the impugned Government Order, allowing the appeal of Mr. Abdul Khader Yunus and directing the MMDA to issue planning permission for Ground floor plus seven floors after he provides vehicular access (Annexure 'O'). Mrs.Nalini Chidambaram filed W.P. No. 1390 of 1989 seeking to quash the impugned Government Order and to prevent the constructions of Mr. Abdul Khader Yunus. To the same effect, W.P. No. 1391 of 1989 was filed by Mr. Hajee Moosa Sulaiman Sait and by Mr. Ponniah. The writ petitions were filed in January, 1989. But, even on 25.10.1988, the Government had issued a letter to the MMDA on a further representation by Mr. Abdul Khader Yunuson 3.10.1989,modify-ing the impugned Government Order, and directing the MMDA to issue planning permission after obtaining an undertaking from Mr. Abdul Khader Yunus for demolition of the concerned stair-case portion, so as to provide 7.2 metres. The letter dated 3.10.1988 of Mr. Abdiri Khader Yunus is Annexure 'P'and the impugned letter is Annexure 'Q'. The MMDA had issued the planning permission and the Corporation of Madras the building permit to Mr. Abdul Khader Yunus on 12.12.1988. Both refer only to the impugned Government Order and not the impugned letter. W.P. No. 5651 of 1989 was filed by Mr. Hajee Moosa Sulaiman Sait and W.P. No. 5652 of 1989 has been filed by Mrs. Nalini Chidambaram, questioning the impugned letter and the planning permission of the MMDA and the building permit of the Corporation of Madras. Several contentions and counter contentions were raised by the parties before the learned single Judge, who heard the four writ petitions; and yet the concentration was mainly riveted on the questions as to whether the writ petitioners could be held to be persons aggrieved to maintain the writ petitions; as to whether the impugned letter could survive; and as to whether the impugned Government Order suffered any "In firmity on the aspect of the violation of the rules regarding the constructions of Mr. Abdul Khader Yunus. The learned single Judge held that the writ petitioners are persons aggrieved; frowned upon the impugned letter; and upheld the validity of the impugned Government Order. As a result, W.P. Nos. 1390 and 1391 of 1989 were dismissed; and W.P. Nos. 565 land 5652 of 1989 were allowed quashing the impugned letter. W.A. No. 1104 of 1989 has been preferred against W.P. No. 1391 of 1989 and W.A. No. 129 of 1990 has been preferred against W.P. No. 1390 of 1989. On 28.2.1990, a clarification was sought for from the learned single Judge as to what was the order quashed in W.P. Nos. 5651 and 5652 of 1989, and the learned single Judge made it clear that only the impugned letter has been quashed. As against that order, W.A. No. 279 of 1990 has been preferred by Mr. Hajee Moosa Sulaiman Sait and W.A. No. 380 of 1990 has been preferred by Mrs.Nalini Chidambaram.
2. Mrs. Nalini Chidambaram for herself as the appellant and as counsel for Mr. Hajee Moosa Sulaiman Sait and Mr. Ponniah, urged before us three aspects. Firstly, she would contend that the Government was considering the appeal of Mr. Abdul Khader Yunusagainst the refusalof the planning permission by the MMDA for the multi-sioreyed building of ground floor plus ten floors and while doing so, the Government had no jurisdiction to permit Mr. Abdul Khader Yunus to submit a revised plan for ground floor plus seven floors and accord sanction to him without directing a scrutiny of the revised plan by the panel as contemplated under Clause 16 of Annexure IX of the Development Control Rules. On an analysis and an assessment of the appellate powers of the Government under the Act, and the facts of the case, we are not able to appreciate and uphold this contention. Section 79 of the Act speaks about appeal to prescribed authority against any decision or order of the planning authority, and it reads as follows:
79. Appeal to prescribed authority: - (1) Any person aggrieved by any decision or order of the planning authority under Section 49 of 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.
The appeal of Mr. Abdul Khader Yunus was entertained, considered and orders passed thereon only under this provision. Rule 17(a) of the Development Control Rules reads as follows:
17. Areas for buildings of special character: - (a) Multi-storeyed buildings; Buildings exceeding 4 floors or 15 metres in height shall not be permitted in area specifically prohibited for construction of such buildings. They shall conform to the Special Rules for Multi-storeyed buildings' given in Annexure IX. A description of the areas set apart for such construction is given in Annexure X. Annexure IX, as referred to in Rule 17(a) contains Special-Rules for Multi-storeyed buildings and clause 15 thereof reads as follows:
Scrutiny of the plan:- The plan shall be scrutinised and forwarded to Government, with recommendation of a penal comprising of the following members, for approval:
(i) Chief Planner, Madras Metropolitan Development Authority - Chairman,
(ii) Chief Engineer, Corporation of Madras - Member.
(iii) Director of Fire Service-Member,
(iv) Chief Engineer, Madras Metropolitan Water Supply and Sewerage Board - Member,
(v) Chief Engineer, Tamil Nadu Electricity Board - Member.
(vi) Deputy Commissioner (Traffic) - Member.
(vii) Senior Planner, Madras Metropolitan Development Authority - Member - Convenor. Any suggestion or alterations recommended by the panel and approved by the Government shall be incorporated in the plans.
Sub-section (3) of Section 79 confers on the appellate authority, while disposing of an appeal, a very comprehensive power to 'pass such order thereon as the prescribed authority may deem fit.' Different statutes confer appellate powers on specified authorities, and their amplitude will depend upon the terms of conferment. The set of expressions used in Section 79(3) or similar to it has been used in other statutes, and it has been always countenanced that it gives powers of widest character on | the appellate authority so as to take in a power, of remand. Ismail, J., as he then was, in Ramamurthi v. Rangachari , referred to his earlier pronouncement in M.S. Sambamurli Sastriar and Ors. v. The Deputy Registrar of Co-operative Societies, Ranipet, North Arcot District and Ors. W.P. No. 790 of 1969, order dated 23.4.1970, wherein construing Section 96(4) of the Tamil Nadu Co-operative Societies Act (LIU of 1961) where the power of the appellate authority was defined as 'pass such order thereon as the appellate authority may deem fit' the learned Judge had observed:
It is an ordinary rule of construction that, where a statute confers a jurisdiction on an authority, that jurisdiction must be deemed to include and imply all powers that are necessary or incidental to the effective exercise of the jurisdiction conferred on the authority unless there is anything contrary expressly provided for in the statute itself.
There was also reference to following passage from Maxwell on Interpretation of Statutes Eleventh Edition, extracted in the pronouncement of the Supreme Court in Income-tax Officer, Cannanore v. M.K. Mohammed Kunhi A.I.R. 1969 S.C. 430:
Where an Act confers a jurisdiction, it impliedly also grants the power of doing all such acts, or employing such means, as are essentially necessary to its execution.
3. The language employed in Sub-section (3) of Section 79 of the Act is of the widest amplitude without any restriction and it is not possible to circumscribe it, unless there is an absolute warrant for it. The Government was considering the appeal of Mr. Abdul Khader Yunus under Section 79(3) of the Act. The remarks called for by it from the MMDA disclosed certain violations of the rules. Mr. Abdul Khader Yunus deemed it fit to have his purpose served by the restricting the height of his multi-storeyed constructions, to ground floor pi us seven floors. The locale is same, the building is same, and the owner is same. By the reduction of the height | of the same building in the same locaieanu die same owner, the application of the fornuic, as per the rules, became relevant. Already "heu has been satisfaction of Clause 16 of Annexure IX for the same building with different height. After the; Government became seized of the matter, when j there has been a reduction of the height of the building, if the Government by itself as the appellate authority deemed fit to examine the relevant aspects, we cannot view such exercise of power as lacking in competency and unsdiction, because Section 79(3) is widely and generously couched, with regard to exercise of appellate powers. In the instant case, the Government even with regard to the constructions of ground floor plus seven floors, obtained the expertise of the MMDA. The remarks of the MMDA, though not complementary to Mr. Abdul Khader Yunus at the earlier stage, found satisfaction with the rules, except regarding vehicular access. It must be noted that the Government in its exercise of appellate powers has not been called upon by Section 79(3) to exercise only these powers and in the manner of exercise of such powers, as of and by the MMDA. In some of thestatutes, the powers of the appellate authority have, in fact, been circumscribed and limited in such a manner. In contrast, it is not so with regard to the Act. Viewed from this angle and on the facts of the case, we cannot hold that the Government committed any error or irregularity in the exercise of its powers as the appellate authority. The Government could not also be stated to have exercised the improperly and "indiscriminately. We record that Mr. K. Doraiswamy, learned Counsel for Mr. Abdul Khader Yunus-, advanced submissions in the above lines; and he further submitted that even assuming, for arguments' sake, that there has been an irregular exercise of power by the Government, without admitting it, yet this Court, in the exercise of its highly prerogative writ jurisdiction, should not interfere, because there has been no failure of justice, and the asking for writs by the appellants under Art.226 should not be accorded as of course on the facts of the present case. Mr. K. Doraiswamy in this behalf placed reliance on the following pronouncements:
(i) A.M. Allison v. B.L. Sen and (ii) Balcivantrai v. M.N. Nagrashna . This submission appeals to us and we accept it.
4. The second contention advanced by Mrs. Nalini Chidambaram was that the Government could not exercise appellate powers, because as per Clause 16 of Annexure IX of the Development Control Rules, it is the decision making authority on the recommendation by the panel. This contention omits to take the note of the factual features of the present case. The MMDA has not earlier forwarded recommendation to the Government for the latter to act upon the same and there has been only a refusal by the MMDA and in the said circumstances, it cannot be complained that the Government was sitting in judgment over its own decision. Realising the futility of this contention, it was not seriously pursued further before us.
5. The third contention put forth by Mrs. Nalini Chidambaram was that in the instant case violation of the rules continues and there ought not to have been accord of sanction. The learned single Judge found that there was no violation of the rules in respect of the constructions of Mr. Abdul Khader Yunus, except for vehicular access. The impugned Government Order has made provisions for this drawback and only on satisfaction of the conditions imposed there for, there has been a direction to the MMDA to accord the planning permission. However, the impugned letter departed from the impugned Government Order : Rightly, the learned single Judge quashed the impugned letter, leaving in tact the impugned Government Order. We have already noted that the planning permission of the MMDA and the building permit of the Corporation of Madras are only in accordance with the impugned Government Order. On 17.4.1990, this Court, in the course of the hearing of the writ appeals, made the following order:
The controversy in these four writ appeals relates to the constructions that are being done by the respondent Abdul Khader Yunus. There is a proposal expressed before us by the appellants, who are aggrieved by such constructions and as well as by the respondent Abdul Khader Yunus, represented by their respective learned Counsel, that the senior Planner of the Madras Metropolitan Development Authority may visit the spat in the presence of all the parties and inspect and find out as to whether the constructions by the respondent Abdul Khader Yunus has violated any rule or regulation governing the putting up of such constructions and submit a report to this Court after the same having been approved by the Member-Secretary of the Madras Metropolitan Development Authority and it is stated that the parties will accept the said report as reflecting the factual position and they will make their say before this Court. This proposal we are implementing and we are giving the following direction:
(1) The Senior Planner of the Madras Metropolitan Development Authority shall visit the spot and do the inspection of the constructions that are being done by the respondent Abdul Khader Yunus in the premises concerned on Thursday the 19th April, 1990 at 5 P.M. and find out as to whether the constructions that are being done by the said respondent violate any* rule or regulation governing such constructions. All the parties are deemed to have notice of this date and timing of the inspection and they shall be present at the time of the said inspection. (2) After doing the inspection, as per clause (1) supra, the Senior Planner of the Madras Metropolitan Development Authority shall prepare a report and have the approval of the same by the Member-Sesretary of the Madras Metropolitan Development Authority and submit the said report to this Court on or before 25.4.1990. Copies of the report shall be furnished to all the parties concerned in these writ appeals. Call these matters on 25.4.1990 at, 2.15.P.M. Pursuant to the directions given above, the MMDA has submitted the report, and the report shorn off the plan, is annexed here as Annexure 'R'. The report sums up as follows:
After factual verification of the site, Madras Metropolitan Development Authority have satisfied that the construction of the third respondent have come up only in accordance with the plan without violating any rule for multi-storeyed buildings.
Now the report is sought to be given a go-by. We do not think that this is permissible for the appellants. The factual basis, as reflected in the report, was agreed to be accepted and thereafter only there was a reservation to make submissions. The factual position, as per the report, indicating that there is no violation of the rules, deserves acceptance. Subsequently, on 8.6.1990, in response to a letter from Abdul khader Yunus, the MMDA wrote as follows:
From The Member Secretary, Madras Metropolitan Development Authority, No. 8, Gandhi Irwin Road, Thalamuthu Natarajan Building,' Madras-8.
To Mr. Abdul Khader Yunus, No. 10 & 11, Haddows Road, Nungambakkam, Madras-6.
Lr. No. C3/12372/90, dated 8.6.1990. Sir, Sub : - MMDA - PP - Proposed construction of G.7 floors building for Residential purpose at Door Nos. 10 & 11, Haddows Road, Madras - Demolition of Staircase - Certificate - Issued - Reg. Ref: - Your Letter dated 2.6.1990.
With reference to your above letter, I am to inform that the site was inspected on 8.6.1990 and found that the staircase on the northern side was completely demolished and the open land available for vehicular access way varies from 8.20 m to 8.50 m (i.e. more than 7.2. m. the minimum required). Yours faithfully, Sd/- for Member-Secretary.
In the said circumstances, we accept the factual finding of the learned single Judge on the question of compliance with the rules and they stand reiterated by the subsequent proceedings, referred to above.
6. Mr. K. Doraiswami, raised a question with reference to the locus standi of the appellants to maintain the writ petitions on the ground that they are not persons aggrieved. There is a profuse discussion in the common order of the learned single Judge over this aspect and we approve every one of the reasonings expressed by the learned single Judge for holding that the appellants are persons aggrieved, so as to maintain the writ petitions. The discussion, which has preceded, obliges us to dismiss all the four writ appeals and accordingly they are dismissed. No costs.