Madras High Court
Dr.S.Gurushankar vs The Government Of Tamil Nadu on 23 December, 2014
Author: V.Dhanapalan
Bench: V.Dhanapalan, V.M.Velumani
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 23.12.2014 CORAM THE HONOURABLE MR.JUSTICE V.DHANAPALAN AND THE HONOURABLE MS. JUSTICE V.M.VELUMANI W.P(MD)No.17855 of 2014 and M.P(MD)No.1 of 2014 Dr.S.Gurushankar ... Petitioner Vs. 1.The Government of Tamil Nadu, represented by The Secretary to Government, Housing and Urban Development Department, Fort St.George, Chennai ? 600 009. 2.The Director of Town and Country Planning, Directorate of Town and Country Planning, Opp. LIC, Chengalvarayan Building, 4th Floor, 807, Anna Salai, Chennai ? 600 002. 3.The Member Secretary (i/c), Thanjavur Local Planning Authority, No.33, 4th Street, Rajappa Nagar, Medical College Road, Thanjavur ? 613 007. 4.The President, Nilagiri Panchayat, Nilagiri Therkku Thottam, Thanjavur. ... Respondents Prayer Petition filed under Article 226 of the Constitution of India, to issue a writ of Mandamus to direct the first respondent to pass orders on the application for exemption under Section 113 of the Tamil Nadu Town and Country Planning Act, 1971, sent by the petitioner to the first respondent on 15th October, 2014, in accordance with law expeditiously. !For Petitioner ... Mr.K.Subramanian, Senior Counsel for Mr.S.Ramesh ^For Respondents ... Mr.M.Govindan, Special Govt. Pleader for R.1 to R.3 Mr.M.Gandhi for R.4 * * * * Date of Reserving the Order : 08.12.2014 Date of Pronouncing the Order : 23.12.2014 :ORDER
V.DHANAPALAN,J.
Heard Mr.K.Subramanian, learned Senior Counsel appearing on behalf of Mr.S.Ramesh, learned Counsel for the petitioner, Mr.M.Govindan, learned Special Government Pleader for the respondents 1 to 3 and Mr.M.Gandhi, learned Counsel for the fourth respondent.
2. Seeking a writ of Mandamus to direct the first respondent to pass orders on the application for exemption under Section 113 of the Tamil Nadu Town and Country Planning Act, 1971, sent by the petitioner to the first respondent on 15th October, 2014, in accordance with law expeditiously, the petitioner has filed the present writ petition.
3. The case of the petitioner, inter alia, is as follows:
3.1. The petitioner has established a Super Specialty Hospital at Thanjavur, by name, Meenakshi Hospital in Survey No.244/2, 6, 7 and 9A1 through financial assistance by availing loans from Nationalized Banks and he claimed that it is his own property and set up in the year 2008-09 at the outskirts of Thanjavur Municipal Town in the village of Neelagiri Therkku Thottam. According to the petitioner, as there was a consistent demand by the people of Thanjavur and the surrounding Districts for the establishment of a superior healthcare services hospital and in order to fulfill the said long standing demand of the people of that area, he started the above said 120 bed-Jed Multi-Specialty Hospital. Further, the building was constructed in the area of 4,150 .30 Sq. Metres after obtaining necessary approval from the Director of Town and Country Planning, Chennai in No.227/2010 dated 30.12.2010, Local Planning Authority, Thanjavur No.01/2011 dated 12.01.20 11 and from Thanjavur, Nilagiri Panchayat No.05/2011 dated 12.01 2011. The said Hospital has been operating services with effect from 05.01.2013 and thereby, providing a Word Class Health Care to all the people of Thanjavur and other surrounding districts at their affordable costs.
3.2. It is further case of the petitioner that the said Meenakshi Hospital, Thanjavur, is offering a total and comprehensive health solution comparable to the best hospitals in India. The team comprises physicians, surgeons and other healthcare professionals of the highest caliber and experience. The hospital features one of the most advanced hospital computer networks and supports more than 100 computers and has computerized nearly every aspect of patient care including all patient information, lab testing and radiological imaging. He has also listed out the salient features incorporated in the hospital for the benefits of the people and inter alia, the said Hospital is,-
(a) the only private hospital in Thanjavur District to follow the NABH standards and get inspection done to be accredited by the NABH (National Accreditation Board for Hospital and Healthcare providers);
(b) Providing fully automatic Fire Extinguisher, Wet Sprinkler System, Smoke Detector, Smoke Exhaust, Automatic Fire Alarm and Yard Hydrant for the safety and security of patients, public and building;
(c) Having eight numbers of lift and one number of ramp for the usage of patients and attenders and is functioning with uninterrupted power supply without affecting the patient care, besides, following the green building concepts in view of saving in power consumption and eco-friendly environment;
(d) Having sewage water treatment plant and the treated water has been utilized to the in house plantation development;
(e) Having Accident and Emergency Department in Thanjavur District and surrounding districts. The chances of saving the life of a critically ill patient (affected in an accident or in an emergency situation like poison, snake bite and etc.) are much higher in a hospital with Accident & Emergency Department than a hospital without Accident & Emergency Department;
(f) Providing cancer treatment like Linear accelerator radiotherapy and chemotherapy. If the people of Thanjavur district and surrounding districts need to undergo the Cancer treatment they have to travel to Chennai or other major cities in and around Tamil Nadu for past many decades;
(g) Providing Brachytherapy facility to the Cancer patients, which is called internal radiation therapy uses sealed radioactive sources for cancer treatment These can be in the form needles, wires, seeds etc. Earlier internal radiation required hospital stay for 3 to 5 days in isolated rooms.
But presently with HDR [High Dose Rate] brachytherapy available in our institution, the treatment can be taken on an out-patient basis. The time period of treatment is less than an hour.
(h) Providing hemodialysis facility with state of art equipment and the patients are continuously monitored by modern electronic devices with 19 numbers of machines by the nephrologists.
(i) Providing world class treatment to the un-affordable patients from Thanjavur and surrounding districts through the Chief Minister Comprehensive Health Insurance Scheme, which is running successfully with around 24 bedded separate free ward.
(j) Having the CSSD (Central Sterile Supply Department) facility for the safety of patients and controls the infection and having separate catering facility for the patients, attender and staff. The patients are provided special diet as per the direction of health care providers;
(k) Having separate in house laundry facility for the safety patients and having a spacious corridor and waiting rooms for the patients and public usages, since we are handling more than 1000 patients and attenders on a daily basis.
(l) Having more than 20 OPD Consultation Room for various specialties and having in-house pharmacy facility for the benefit of patients and public, with NABL Standard 24 hours laboratory services and its comprises a reference diagnostic clinical laboratory, which includes advanced Biochemistry, Microbiology, Serology, Histopathology, Cytopathology. Haematology, Metabolic disorders, Toxicology and Poison Centre and Transfusion Medicine.
(m) Having in house Radiology and Imaging Sciences facility and referral site and its offered several services and having NABH Standards Operation Theater with Laminar Air Flow System, HEPA Filter, Uni Flow Direction facility for prevention of infection and patient safety.
(n) Having Cath Lab facility for emergency cardio pulmonary disease patient with Laminar Air Flow System, HEPA Filter, Uni Flow Direction facility for prevention of infection and patient safety and having Cardiothoracic and Vascular Surgery Department with Laminar Air Flow System, HEPA Filter, Uni Flow Direction facility theatre.
(o) Having attached in house Blood Bank in complicated surgical procedure and since the Hospital is receiving a large number of snake bite and poison patient, the petitioner Hospital is having 50 bedded Intensive Care Unit facilities with qualified medical professionals and other paramedical professionals is providing the Intensive Critical Care services to the critical ill patients with stat of art equipment like ventilators and other patient monitoring parameter equipments; and
(p) going to run the Smile Train Cleft lip / Palate surgery Regional Centre, and Smile Train joined hands to help the kids and adults suffering from Deft Lip/Palate deformity at free of cost.
3.3. The main grievance of the petitioner appears that he made a request for reclassification of 3443.60 sq. metres of land in the above Survey No.244/2 in Nilagiri Therkku Thortam Village, Thanjavur Local Planning Area, from Mixed Residential Use Zone into Public and Semi Public Use Zone in the approved Master Plan for the Thanjavur Local Planning Area, pursuant to which, the first respondent passed G.O.(2D) No.427 dated 02.08.2010 changing the use of zone from Mixed Residential Zone into Public and Semi Public Use Zone. Thereafter, on 04.08.2010, he submitted an application in Form No.1 U/s 49 of the Tamil Nadu Town and Country Planning Act, 1971, seeking approval of the Hospital Building Plan was submitted to the Director of Town and Country Planning, Anna Salai, Chennai-600 002, the second respondent herein, along with the Plan.
3.4. On the basis of G.O.(2D) No.427 of Housing and Urban Development (UD4-1) Department dated 02.08.2010, the third respondent i.e. Member Secretary, Thanjavur Local Planning Authority, in the exercise of the powers conferred under Sub-Section (4) of Section 32 of the Tamil Nadu Town and Country Planning Act, 1971, issued a Notification dated 18.08.2010, approving the relevant variations made in the Master Plan for Thanjavur Local Planning Area. Thereafter, on 02.09.2010 he submitted the application for planning permission to the third respondent. Member Secretary. Thanjavur Local Planning Authority and accordingly, on 30.12.2010, the building permission was granted by the Director of Town and Country Planning, the second respondent herein.
3.5. Further, on 12.01.2011, the planning approval was granted by the third respondent herein, Member Secretary, Thanjavur Local Planning Authority and on 12.012011 Panchayat Approval for the Building Plan was granted by the fourth respondent herein, President, Nilagiri Panchayat Board, Thanjavur. Thereafter only, the Hospital Building was constructed and the Hospital services were commenced with effect from 05.01.2013 after the Building Completion Certificate was issued by the Nilagiri Panchayat. 3.6. It is further stated that after a long lapse of three years from the date on which the Building Plan Approval was granted by the third respondent, a notice under Sections 56 and 57 of the Tamil Nadu Town and Country Planning Act, 1971, dated 05.08.2014, was issued by the third respondent, for the stoppage of work, to vacate from the building and to stop usage of the building. In the said notice dated 05.08.2014, the third respondent has stated that the original approval plan must be sent to their office for verification and that if the construction has been carried out as against the conditions imposed along with the approval plan, the construction of work should be stopped and the premises should not be used.
3.7. He further stated that a reply dated 11.08.2014 was sent by the Public Relations Officer of the said Hospital, wherein one month time is sought for producing the original documents as required in the above said notice. Meanwhile, on 05.09.2014, a second notice was issued by the third respondent to the petitioner stating that the approvel was obtained for Stilt + 4 Floor and as against the approval plan, the construction was made consisting of Basement + 4 Floor and it has been in use. It is also further stated in the second notice that without the approval of the Thanjavur Local Planning Authority, the construction of the 5th and 6th Floors are being carried out and since the additional construction was made after the issuance of notification dated 05.08.2014, they should be removed within a period of seven days. Further, it is informed in the second notice that when the building was inspected, it came to know that the construction was against the approved plan and that as per the approved plan, the total area allowed for construction was only 3443.50 sq. Meter, but the building was constructed in 15799.13 sq. meter and therefore, the petitioner was directed to bring the building to the earlier stage within thirty days, failing which, there will be locking and sealing the building campus; seizing the construction materials, weapons, equipments, tools, scaffoldings, vehicles or the things which are used for construction or any other material in the land, auction of the seized material; and action would be taken against the owner of the building and thereby, stopping the usage and collecting the expenses of arrears of revenue, other actions as per the Town and Country Planning Act, 1971.
3.8. According to the petitioner, the above said two notices dated 05.08.2014 and 05.09.2014 issued by the third respondent would cause prejudice to the petitioner and therefore, the petitioner approached the first respondent, the Government of Tamil Nadu, Housing and Urban Development Department praying to invoke its power under Section 113 of the Tamil Nadu Town and Country Planning Act, 1971, as the said Hospital is situated within the Panchayat limis of Nilagiri Village in Thanjavur Panchayat Union and the purport of the Act appears to be to allow the lands for development in public interest.
3.9. Further, the construction of the sixth floor has been commenced to run a new SMILE TRAIN Centre at the said Hospital to provide free medical treatment to the children with cleft limb and palate anomaly. Following the aforesaid two notices dated 05.08.2014 and 05.09.2014, in the interest of public at large, the petitioner submitted an application under Section 113 of the Tamil Nadu Town and Country Planning Act, 1971, claiming exemption before the first respondent herein, in regard to the extended area of construction of Meenakshi Hospital in Nilagiri Therkku Thottam Village, Thanjavur Taluk from the provisions of the Tamil Nadu Town and Country Planning Act, 1971. However, the same is still pending consideration before the first respondent and therefore, he filed the present writ petition seeking a writ of Mandamus to direct the first respondent to consider and pass orders on the application of the petitioner dated 15.10.2014, claiming exemption under Section 113 of the Tamil Nadu Town and Country Planning Act, 1971.
4. Whereas the third respondent has filed the counter contending thus:
4.1. The petitioner obtained Planning Permission for constructing a Hospital Building in R.S.No.244/2,6,7 and 9A1 in Neelagiri Therkku Thottam Village, Neelagiri Panchayat in Thanjavur Local Planning Area, by proceedings in Roc.No.980/2010 TLPA dated 12.01.2011 of Member Secretary, Thanjavur Local Planning Authority and the Planning Permission Number is 01/2011 dated 12.01.2011, after getting technical approval from the Director of Town and Country Planning, Chennai-2 vide Roc.No.23510/2010/BA2 dated 30.12.2010.
4.2. Though the petitioner obtained planning permission for 4350.50 sq.mts for Stilt + 4 Floors, he had constructed two floors excessively, viz., basement + Ground + 5 Floors and the total construction area is 15,799.13 sq.mts which is excessive and in contravention of the plan approved by the authority. Considering the above contravention, the third respondent issued notice under Sections 56 and 57 of the Act, twice i.e on 05.08.2014 and 05.09.2014 and thereafter, the petitioner sent a reply dated 13.08.2014 seeking one month time to produce the necessary records and the petitioner sent a reply to the notice on 22.09.2014 by seeking further time of one month.
4.3. Notice in Forum No.2 under Section 56 and 57 was issued on 05.09.2014 to vacate and restore the building as per the approved plan, to which, a reply was sent by the petitioner on 22.09.2014 informing that the petitioner is prepared to submit an application to the Government seeking exemption under Section 113 of the Act and the said application was received by the Government on 20.10.2014 and now, it is pending consideration of the Government.
4.4. Moreover, the petitioner is bound to construct the building as per the plan approved by the authority and in case, there is any contravention in the construction, the petitioner can avail the opportunity by submitting the revised plan and if such contravention is curable, the authority will take a decision and thereafter, he can invoke the appellate jurisdiction as prescribed in the Act and thereby, the statutory appeal is also available to the petitioner on the orders of the authority. However, the petitioner sent a representation to the first respondent seeking exemption as per Section 113 of the Act.
4.5. The relief sought for by the petitioner under Section 113 of the Act is a discretionary one and in case, the petitioner factually and legally satisfies the authority concerned, the same will be considered on merits and in accordance with law and the first respondent is empowered to exercise the jurisdiction under Section 113 of the Act, but the petitioner cannot seek any remedy as a matter of right and no such statutory right is available to the petitioner. Therefore, the writ petition filed by the petitioner is not maintainable, for the reason that he cannot invoke the jurisdiction of this Court under Article 226 of the Constitution of India, when the petitioner failed to establish his legal right to seek the relief under Section 113 of the Act and only it is the discretion of the Government to consider his application seeking exemption under Section 113 of the Act. Hence, he prayed for the dismissal of the writ petition.
5. Mr.K.Subramanian, learned Senior Counsel appearing for the petitioner submitted that the petitioner constructed the said Hospital for the benefit of the public at large in that locality and if the respondents proceed with the notices issued by them, the public will be put to irreparable hardship which would result in derailment of the treatment that is being undergone by the patients therein and ultimately, the needy would be deprived of their medical assistance. Further, he submitted that since the construction of sixth floor is for inaugurating a new SMILE TRAIN Centre at the said Hospital to provide free medical treatment to the children with cleft limb and palate anomaly, the petitioner has already moved before the first respondent seeking exemption under Section 113 of the Act in order to exempt the petitioner Hospital from the provisions of the Act and the same is pending consideration.
6. Since the petitioner Hospital is rendering medical services at the world class as per the National Accreditation Board for Hospitals and Health Care Providers (NABH), the same would not be curtailed under the guise of initiating action by issuing notices under Sections 56 and 57 of the Act and moreover, the request of the petitioner has been under consideration before the first respondent seeking exemption and in such an event, the first respondent may be directed to exercise his discretionary powers to consider the application of the petitioner filed under Section 113 of the Act, so as to prevent the threat made to the patients in the Hospital, the learned Senior Counsel argued.
7. In regard to the maintainability of the writ petition, he relied upon the decision of the Honourable Supreme Court in S.C.Advocates-On-Record Association v. Union of India reported in (1993) 4 Supreme Court Cases 441, wherein, it is held thus:
"311. In the above background the question must still be answered on legal principle whether the issue is or is not justiciable i.e. is it beyond the purview of the court or is it merely not proper to give any direction or issue a writ, though justiciable. This in essence raises the question of the ambit of judicial review. Under this doctrine High Courts and the Apex Court exercise supervisory jurisdiction over persons who are charged with the performance of public acts and duties. This jurisdiction was derived by courts though common law and was exercised by the issuance of an appropriate writ. What is generally reviewed is not the merits of the action but the decision making process itself. The court's duty normally is to confine itself to question of legality i.e. has the authority exceeded its powers or abused them, did it act in violation of the principles of natural justice or has it acted in a irrational, unreasonable, and arbitrary manner or the like. Broadly speaking, administrative action is subject to judicial review on three grounds, namely (i) illegality, (ii) irrationality and (iii) processual impropriety. But this may be true of cases where the public authority has performed its public duty and the action is questioned. But where the allegation is that the public authority is guilty of non-performance of its public duty and it is shown that it has failed to perform its constitutional or statutory duty, can it be said that there is no remedy available through court and a mandamus cannot issue? In order, however, for a mandamus to issue to compel performance of a duty, it must clearly appear from the language of the statute that a duty is imposed, the performance or non- performance of which is not a matter of mere discretion. But even in cases where the duty is discretionary, as distinct from a statutory obligation, a limited mandamus could issue directing the public authority to exercise its discretion within a reasonable time on sound legal principles and not merely on whim."
(emphasis added.) Contending that the writ petition filed by the petitioner is very well maintainable in the light of the above decision of the Honourable Supreme Court, the learned Senior Counsel argued that a direction could be issued to the first respondent to consider the application filed by the petitioner under Section 113 of the Act and pass orders on merits and in accordance with law.
8. Also, placing reliance on the decision of the Honourable Supreme Court in Consumer Action Group v. State of Tamil Nadu reported in 2000 (IV) CTC 181, the learned Senior Counsel for the petitioner contended that the power of exemption under Section 113 of the Act could be exercised for the development of the area concerned. In the said decision, the validity of Section 113 of the Tamil Nadu Town and Country Planning Act, 1971, has also been considered and upheld by the Honourable Supreme Court. Further, it is held thus:
"18.The catena of decisions referred to above concludes unwaveringly in spite of very wide power being conferred on delegatee that such a section would still not be ultra vires, if guideline could be gathered from the Preamble, Object and Reasons and other provisions of the Acts and Rules. In testing validity of such provision, the courts have to discover, whether there is any legislative policy purpose of the statute or indication of any clear will through its various provisions, if there be any, then this by itself would be a guiding factor to be exercised by the delegatee. In other words, then it cannot be held that such a power is unbridled or uncanalised. The exercise of power of such delegatee is controlled through such policy. In the fast changing scenario of economic, social order with scientific development spawns innumerable situations which Legislature possibly could not foresee, so delegatee is entrusted with power to meet such exigencies within the in built check or guidance and in the present case to be within the declared policy. So delegatee has exercise its powers within this controlled path to subserve the policy and to achieve the objectives of the Act. A situation may arise, in some cases where strict adherence to any provisions of the statute or rules may result in great hardship, in a given situation, where exercise of such power of exemption is to remove this hardship without materially effecting the policy of the Act, viz., development in the present case then such exercise of power would be covered under it. All situation cannot be culled out which has to be judiciously judged and exercised, to meet any such great hardship of any individual or institution or conversely in the interest of society at large. Such power is meant rarely to be used. So far decisions relied by the petitioner, where the provisions were held to be ultra vires, they are not cases in which court found that there was any policy laid down under the Act. In A.N. Parasuraman & Ors. (supra) Court held Section 22 to be ultra vires as the Act did not lay down any principle or policy. Similarly, in Kunnathat Thathunni Moopil Nair (supra) Section 7 was held to be ultra vires as there was no principle or policy laid down.
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29. Whenever any statute confers any power on any statutory authority including a delegatee under a valid statute, howsoever wide the discretion may be, the same has to be exercised reasonably within the sphere that statute confers and such exercise of power must stand the test to judicial scrutiny. This judicial scrutiny is one of the basic features of our Constitution. The reason recorded truly discloses the justifiability of the exercise of such power. The question whether the power has been exercised validly by the delegatee, in the present case, if yes, then it can only be for the furtherance of that policy. What is that policy? The policy is the development and use of rural and urban land including construction of, colonies, buildings etc. in accordance with the policy of the planning as laid down under the Act and the Rules. When such a wide power is given to any statutory authority including a delegatee then it is obligatory on the part of the such authority to clearly record its reasons in the order itself for exercising such a power. Application of mind of such authority at that point of time could only be revealed when order records its reason. Even if Section is silent about recording of reason, it is obligatory on the Government while passing orders under Section 113 to record the reason. The scheme of the Act reveals, the Government is conferred with wide ranging power, including power to appoint all important statutory authorities; appoints Director and its members of Town and Country Planning under Section 4; constitutes Tamil Nadu Town and Country Planning Board under Section 5; Board to perform such functions as Government assigns under Section 6; appoints Madras Metropolitan Development Authority under Section 9-A; Government entrusted for making master plan or any other new plan; any plant or modification is subject to the approval of Government. In fact, every statutory Committee is created by the Government and its planning is subject to the approval by the Government. It is because of this that very wide power is given to it under Section 113. In a given case, where a new development in rural or urban area may be required urgently and provisions under the Act and Rules would take long procedure, it may in exercise of its exemption power exempt some of the provisions of the Act and Rules to achieve the development activity faster or in a given case, if any hardship arises by following or having not followed the procedure as prescribed, the power of exemption could be exercised but each of these cases would be for furtherance of the development of that area."
(emphasis supplied.)
9. He further drew the attention of this Court to the decision in Kences Foundations Pvt. Ltd. v. State of Tamil Nadu reported in 2012 (1) CTC 594, wherein the Division Bench of this Court held as follows:
"60. As rightly contended by the learned counsel for the Association, the Government is bound to give reasons for exercise of its power under Section 113 as per the decision of the Honourable Supreme Court in Consumer Action Group and another v. State of Tamil Nadu and others, 2000 (4) CTC 181 (SC). In that case, the Consumer Action Group filed writ petition under Article 32 of the Constitution of India directly before the Supreme Court challenging the vires of Section 113 of the Act. While upholding Section 113 of the Act, the Supreme Court quashed the Government Orders passed based on Section 113 as there was no application of mind by the Government and there was no reason given for granting exemption under Section 113 of the Act.
Further, the Supreme Court has also held that while exercising the power under Section 113 of the Town and Country Planning Act, the Government shall impose some condition to keep in check the person in whose favour the power was exercised. In this regard, it is relevant to extract paras 28 and 30 of the said judgment, which reads as follows:
"28. In this background we scrutinized each of these 62 GOs. We find that the grant of exemptions to the persons concerned has been in a set manner, almost identically except one or two. When we are saying mechanically, it is because except for typing different plot numbers and the Rules which have been exempted, all other words are identical. Except for this little difference the rest of the words in these orders are the same, which is reproduced below:
"In exercise of powers conferred by Section 113 of the Tamil Nadu Town and Country Planning Act, 1971 (Tamil Nadu Act 35 of 1972) the Government of Tamil Nadu hereby exempts the construction made at ... from the provisions of Rule ... of the Development Control Rules relating to ... (front setback, FSI etc.) requirements respectively to the extent of violations as per plan refused by the Member-Secretary, Madras Metropolitan Development."
Each of these orders reveals non-application of mind by giving a total go-by to the Rules relating to the restrictions and control in construction of a building, to the floor space index, the front setback, side setback, parking requirements including provision of standby generator, transformer room, meter room and floor space requirements, construction abutting road width, corridor width, permissible floor area, limits of nursing homes, height of the rear construction even from the provisions of prohibition on the construction of multistoried buildings etc. Not only this, while granting exemptions the Government has not recorded any reasons as to why such power is being exercised and further such power was exercised not only to regularise some irregularities but were passed to overreach even the order of refusal passed by the Member-Secretary, Madras Metropolitan Development Authority. In other words, power of exemptions was granted which set aside the orders earlier passed by the statutory authorities in terms of the Act and the Rules. The submission on behalf of the State for salvaging the validity of Section 113 being ultra vires was, the Government does not possess uncanalised or unbridled power as it is controlled by the policy of the Act. The question is, whether the impugned orders could be said to have been passed for the furtherance of such policy or for achieving the purpose for which it was enacted. So even as per submission it can only be exercised in the aid of such policy and not contrary to it. We find, in the present case, the Government while exercising its powers of exemption has given a go- by to all the norms as laid down under the Act and the Rules and has truly exercised its powers arbitrarily without following any principle which could be said to be in furtherance of the objective of the Act, nor could learned counsel for the State point out any.
30. When such a wide power is vested in the Government it has to be exercised with greater circumspection. Greater is the power, greater should be the caution. No power is absolute, it is hedged by the checks in the statute itself. Existence of power does not mean to give one on his mere asking. The entrustment of such power is neither to act in benevolence nor in the extra-statutory field. Entrustment of such a power is only for the public good and for the public cause. While exercising such a power the authority has to keep in mind the purpose and the policy of the Act and while granting relief has to equate the resultant effect of such a grant on both, viz. the public and the individual. So long as it does not materially affect the public cause, the grant would be to eliminate individual hardship which would be within the permissible limit of the exercise of power. But where it erodes the public safety, public convenience, public health etc. the exercise of power could not be for the furtherance of the purpose of the Act. Minor abrasion here and there to eliminate greater hardship, may in a given case, be justified but in no case affecting the public at large. So every time the Government exercises its power it has to examine and balance this before exercising such a power. Even otherwise, every individual right including fundamental right is within, reasonable limit but if it makes inroads into public rights leading to public inconveniences it has to be curtailed to that extent. So no exemption should be granted affecting the public at large. Various development rules and restrictions under it are made to ward off possible public inconvenience and safety. Thus, whenever any power is to be exercised, the Government must keep in mind, whether such a grant would recoil on the public or not and to what extent. If it does then exemption is to be refused. If the effect is marginal compared to the hardship of an individual that may be considered for granting. Such an application of mind has not been made in any of these impugned orders. Another significant fact which makes these impugned orders illegal is that Section 113 empowers it to exempt but it obligates it to grant subject to such condition as it deems fit. In other words, if any power is exercised then the Government must put such condition so as to keep in check such person. We find that in none of these sixty-two orders any condition is put by the Government. If not this then what else would be the exercise of arbitrary power?"
But in the case on hand, no condition was imposed by the Government while granting exemption to Section 50 of the Act, by exercising power under Section 113 of the Act."
10. Ultimately, the learned Senior Counsel concluded that pending the application filed under Section 113 of the Act for exemption before the first respondent, the third respondent has initiated action under Sections 56 and 57 of the Act and if it is allowed to proceed, a lot of prejudice would be caused to the petitioner, besides the patients and the general public and hence, he sought for a direction as stated supra. He also prayed that till the application filed under Section 113 of the Act is disposed of by the first respondent, the benefit of interim order granted by this Court on 06.11.2014, shall continue.
11. Per contra, Mr.M.Govindan, learned Special Government Pleader for the respondents 1 to 3, reiterating the averments in the counter filed by the third respondent, submitted that the writ petition is not at all maintainable and the petitioner has to work out his remedy in accordance with law and not by way of invoking Article 226 of the Constitution of India and the application filed by the petitioner under Section 113 of the Act is pending consideration and therefore, no positive direction could be issued by this Court and accordingly, he prayed for the dismissal of the writ petition.
12. We have considered the rival submissions and perused the materials available on record.
13. The issue involved in this writ petition is as to whether the petitioner can avail the remedy under Section 113 of the Act before the first respondent, claiming exemption from the provisions of the Act.
14. From the pleadings, it could be seen that the petitioner is running a Multi-Speciality Hospital in the outskirts of Thanjavur Municiapal Town in the village of Neelagiri Therkku Thottam. The said Hospital building was constructed in the area of 4,150.30 sq. metres after obtaining necessary approval from the Director of Town and Country Planning, Chennai in No.227/2010 dated 30.12.2010, Local Planning Authority, Thanjavur No.01/2011, dated 12.01.2011 and from Thanjavur, Nilagiri Panchayat No.05/2011, dated 12.01.2011 and it started operating the services with effect from 05.01.2013
15. Further, based on the request made by the petitioner for reclassification of 3443.60 sq. metres of land in the above Survey No.244/2 in Nilagiri Therkku Thortam Village, Thanjavur Local Planning Area, from Mixed Residential Use Zone into Public and Semi Public Use Zone in the approved Master Plan for the Thanjavur Local Planning Area, pursuant to which, the first respondent passed G.O.(2D) No.427 dated 02.08.2010 changing the use of zone from Mixed Residential Zone into Public and Semi Public Use Zone. Thereafter, on 04.08.2010, he submitted an application in Form No.1 U/s 49 of the Tamil Nadu Town and Country Planning Act, 1971, seeking approval of the Hospital Building Plan was submitted to the Director of Town and Country Planning, Anna Salai, Chennai-600 002, the second respondent herein, along with the Plan.
16. Pursuant to G.O.(2D) No.427 of Housing and Urban Development (UD4-
1) Department dated 02.08.2010, the third respondent, by exercising the powers conferred under Sub-Section (4) of Section 32 of the Act, issued a Notification dated 18.08.2010 whereby he approved the relevant variations made in the Master Plan for Thanjavur Local Planning Area. Only thereafter, on 02.09.2010, he submitted the application for planning permission to the third respondent and accordingly, on 30.12.2010, the building permission was granted by the second respondent herein. On 12.01.2011, the planning approval was granted by the third respondent herein and on 12.01.2011, Panchayat Approval for the Building Plan was granted by the fourth respondent herein. The Hospital Building was constructed and the services were commenced with effect from 05.01.2013 after the Building Completion Certificate was issued by the Nilagiri Panchayat.
17. The specific contention raised by the petitioner is that alleging that the original approval plan must be sent to their office for verification and that if the construction has been carried out as against the conditions imposed along with the approval plan, the construction of work should be stopped and the premises should not be used, the third respondent issued a notice dated 05.08.2014, under Sections 56 and 57 of the Act, for the stoppage of work, to vacate from the building and to stop usage of the building and according to the petitioner, the said notices which were issued by the third respondent after a long lapse of three years, would cause great prejudice to the petitioner and therefore, the petitioner approached the first respondent seeking to invoke its power under Section 113 of the Act, as the said Hospital is situated within the Panchayat limis of Nilagiri Village in Thanjavur Panchayat Union and the purport of the Act appears to be to allow the lands for development in public interest. Since the said application seeking exemption under Section 113 of the Act is still pending, the petitioner moved before this Court for the relief stated supra.
18. It is just and necessary to refer to Section 113 of the Tamil Nadu Town and Country Planning Act, 1971 and the same reads as hereunder:-
"113. Exemptions - Notwithstanding anything contained in this Act, the Government may, subject to such conditions as they deem fit, by notification, exempt any land or building or class of lands or buildings from all or any of the provisions of this Act or rules or regulations made thereunder."
19. A mere reading of the aforesaid provision would make it clear that the Government may exempt any land or building or class of lands or buildings from all or any of the provisions of this Act or rules or regulations made thereunder, however, subject to such conditions as they deem fit, by way of a notification.
20. Here, in the case on hand, the petitioner has sought for such exemption from the first respondent and he has also made an application before the first respondent claiming exemption under Section 113 of the Act in this regard and admittedly, it is pending consideration. The petitioner has moved before this Court for a direction to the first respondent to consider and pass orders on the said application filed by the petitioner.
21. We find that the petitioner has constructed the said Hospital in the outskirts of Thanjavur Municipal Town in order to cater the medical needs of the people in that locality. Now-a-days, the role of Hospitals, in particular, Multi-Speciality Hospitals, is of paramount importance as it paves the way for saving every lives in the critical hours. The distance of which the Hospital is situated, is a criteria, to bring the patients there in order to afford emergent medical assistance and it is also an undisputed fact that in a minute or two, a life could be saved if proper medical assistance is given and failure thereto, would result in loss of valuable human lives.
22. At this juncture, we would like to refer to the relevant NABH Norms hereunder:
"NATIONAL ACCREDITATION BOARD FOR HOSPITALS & HEALTH CARE PROVIDERS (NABH) NABH is a constituent board of Quality Council of India, set up to establish and operate accreditation and allied programs for healthcare organizations.
The board is structured to cater to much desired needs of the patients and to set benchmarks for the progress of health industry.
Participation in NABH accreditation program is on a voluntary basis. Healthcare organization apply to participate in a program run by NABH. The health care organization signs a general Accreditation Agreement stating rights and obligations of all parties concerned. The assessment process is performed using standards and assessment procedures as per policy and procedures made beforehand.
What we achieve:
Better quality of care;
Better patient safety e.g reduced medication errors, reduced transfusion errors;
Minimized costs e.g. effective utilization of resources; Efficient administrative processes e.g. lesser waiting time, streamlined process flows;
Improved outcomes of patient care e.g. reduced mortality rates, reduces infection rates;
Better employee safety e.g Vaccination against Hepatitis B. Continuous quality improvement e.g. incident reports, Root Cause Analysis (RCA) and Corrective Action and Preventive Action (CAPA).
NABH is an Institutional Member of the International Society for Quality in Health Care (ISQua).
The award of NABH Accreditation to the healthcare organization means that the organization ensures-
1.Commitment to create a culture of quality, patient safety, efficiency and accountability towards patient care;
2.Establishment of Protocols and Policies as per National / International Standards for patient care, medication management, consent process, patient safety, clinical outcomes, medical records, infection control and staffing;
3.Patients are treated with respect, dignity and courtesy at all times;
4.Patients are involved in care planning and decision making;
5.Patients are being treated by qualified and traced staff;
6.Feedback from patients is sought and complaints (if any) are addressed.
7.Transparency in billing and availability of tariff list;
8.Continuous monitoring of its services for improvement;
9.Commitment to prevent adverse events that may occur." According to the petitioner, the said Hospital is running by adhering to the above NABH norms.
23. It is also seen that if the respondents would proceed further with the notices issued by them under Sections 56 and 57 of the Act, then, it definitely reflects on the inmates of the Hospital, which had recently been commenced its medical services to the people therein. In the Act itself, the power has been given to the Government under Section 113 of the Act, to consider the claim for exemptions from the provisions of the Act and in this case, the petitioner has also submitted an application before the first respondent as well.
24. This Court, while admitting the writ petition on 06.11.2014, has granted an interim order, directing the third respondent not to take any coercive action against the petitioner, on the ground that if any action is allowed to proceed, a lot of prejudice would be caused to the petitioner Hospital, including the patients and the general public.
25. We also find that the prayer sought for by the petitioner is only for a direction to the first respondent to consider and pass orders on the application filed under Section 113 of the Act to exempt the petitioner from the provisions of the Act. In our considered opinion, a direction could be given to the first respondent to pass orders on the application filed by the petitioner in this regard, keeping in mind the dictum laid down by the Honourable Supreme Court in Consumer Action Group v. State of Tamil Nadu reported in 2000 (IV) CTC 181.
26. Considering the facts and circumstances of the case and also taking into account the fact that the petitioner Hospital is providing valuable medical assistance to the inmates of the Hospital and the public at large and also catering the social needs of the rural people in and around the historical District of Thanjavur, we feel it appropriate to direct the first respondent to consider and pass appropriate orders on the application for exemption under Section 113 of the Tamil Nadu Town and Country Planning Act, 1971, sent by the petitioner on 15.10.2014, on merits and in accordance with law, within a period of six weeks from the date of receipt of a copy of this order. Till such time, the third respondent shall not take any coercive action as against the petitioner Hospital as indicated in the interim order passed by this Court on 06.11.2014. However, it is made clear that depending upon the outcome of the application filed by the petitioner under Section 113 of the Act, the authority concerned shall act in accordance with the provisions of the Act.
27. With the above observations and directions, this writ petition stands disposed of, accordingly. Consequently, the connected miscellaneous petition is closed. However, there will be no order as to costs.
Note: Issue order copy on 23.09.2014.
Index : Yes / No (V.D.P.,J.) (V.M.V.,J.) Internet : Yes / No 23.12.2014 rsb To 1.The Secretary to Government, The Government of Tamil Nadu, Housing and Urban Development Department, Fort St.George, Chennai ? 600 009. 2.The Director of Town and Country Planning, Directorate of Town and Country Planning, Opp. LIC, Chengalvarayan Building, 4th Floor, 807, Anna Salai, Chennai ? 600 002. 3.The Member Secretary (i/c), Thanjavur Local Planning Authority, No.33, 4th Street, Rajappa Nagar, Medical College Road, Thanjavur ? 613 007. V.DHANAPALAN,J. AND V.M.VELUMANI,J. rsb PRE-DELIVERY ORDER MADE IN W.P(MD)No.17855 of 2014 and M.P(MD)No.1 of 2014 23.12.2014