Madras High Court
I.Ifthiqar Ashiq vs The Deputy Director Of Town And Country ... on 7 October, 2015
Bench: R.Sudhakar, V.M.Velumani
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Dated: 07.10.2015
CORAM
The Honourable Mr.Justice R.SUDHAKAR
and
The Honourable Ms.Justice V.M.VELUMANI
W.P.(MD)No.14762 of 2015
W.P.(MD)Nos.14762, 14763, 13061, 13062, 13073, 16062/2015, 16342, 16284 to
16287, 17072, 14928, 15107, 15183, 15279, 15267, 15374, 15392, 15523, 15635,
15670, 16090, 11495, 11524, 11525, 12201 to 12204, 11187, 14007, 14039,
13929, 13411, 13412, 14650, 15322, 14941, 14844, 14451, 13285, 14951, 18155,
18172, 18296 and 18251 of 2015 and 12883 of 2014
and
M.P.(MD)Nos.1 of 2015 in WP(MD)Nos.14762, 14763, 13061, 13062, 13073, 16342,
16284 to 16287, 14928, 15107, 15183, 15279, 15267, 15392, 15523. 15635,
15670, 16090, 11495, 11524, 11525, 12201 to 12204, 11187, 14007, 14039,
13929, 13411, 13412, 14650, 15322, 14941, 14844, 13285, 14951, 18155 and
18172 of 2015,
2 of 2015 in W.P.(MD)Nos.14763, 16067, 17072, 15374, 11524, 11525, 14007,
13929, 14844, 14451 and 13285 of 2015
and
3 of 2015 in W.P.(MD)Nos.17072 and 14451 of 2015
I.Ifthiqar Ashiq .... Petitioner
vs.
1.The Deputy Director of Town and Country Planning,
4, Hakkim Amalkhan Road,
Chinna Chokkikulam, Madurai-625 002.
2.The Member Secretary,
Kodaikanal Local Planning Authority,
Kodaikanal, Dindigul District.
3.The Commissioner,
Kodaikanal Municipality,
Kodaikanal,
Dindigul District. ... Respondents
W.P.(MD)No.14762/2015:
Writ Petition under Article 226 of the Constitution of India, calling
for records relating to the impugned proceedings of the 2nd respondent in
Aa/Ka/No.16/2015/F1, dated 28.07.2015 and the impugned proceedings of the 3rd
respondent in Aa/Ka/No.16/2015/F1, dated 28.07.2015 and quashing the same as
illegal.
Appearance of Counsel:
!For Petitioners in W.P.(MD)Nos.14762, 14763, 13061, 13062, 14928, 12201 to
12204, 14007 and 14951 of 2015
Mr.M.Ajmal Khan, learned Senior Counsel, for M/s.Ajmal Associates.
For Petitioner in W.P.(MD)No.13073of 2015
Mr.R.Gandhi
For Petitioner in W.P.(MD)No.16062 of 2015
Mr.N.Ranjith
For Petitioner in W.P.(MD)No.16342, 16284 to 16287 of 2015
Mr.K.Guhan
For Petitioner in W.P.(MD)No.17072 of 2015
Mr.M.Dharmaraj
For Petitioners in W.P.(MD)Nos.15107, 15670, 18155, 18296 and 14039 of 2015
Mr.B.Saravanan
For Petitioners in W.P.(MD)Nos.15183, 15279, 15267, 15374, 11524, 11187,
14941, 14451 and 13285 of 2015
Mr.T.Lajapathi Roy
For Petitioners in W.P.(MD)Nos.15392, 16090 and 14650 of 2015
Mr.N.Sathish Babu
For Petitioners in W.P.(MD)Nos.15523 and 15635 of 2015
Mr.K.P.S.Palanivel Rajan,
For Petitioner in W.P.(MD)No.11495 of 2015
Mr.V.Muthukamatchi
for Petitioner in W.P.(MD)No.13929 of 2015 and 12883 of 2014
Mr.G.Anbu Saravanan
for petitioner in W.P.(MD)No.13411 and 13412 of 2015
Mr.Vijaya Shankar
For Petitioner in W.P.(MD)No.15322 of 2015
Ms.S.E.Monica Vincent
For Petitioner in W.P.(MD)No.14844 of 2015
Mr.R.Devaraj
For Petitioner in W.P.(MD)No.18172 of 2015
Mr.P.Muthuvijayapandian
For Petitioner in W.P.(MD)No.18251 of 2015
Mr.M.Saravanan
^For Respondents 1 & 2 in WP(MD)Nos.14762, 13061, 13062, 13073, 15183, 15279,
15267, 14007, 13411, 13285 and 15374 of 2015;
For Respondent-2 in W.P.(MD)No.15523, 15635, 12201 to 12204, 14650 and
14039 of 2015;
For Respondents 1 and 3 in WP(MD)No.16090 of 2015;
For Respondent No.1 in W.P.(MD)Nos.11495, 15322, 18251, and 11524 of 2015
and 12883 of 2014;
Mr.C.Selvaraj, Special Government pleader.
For Respondent-3 in WP(MD)Nos.14762, 13061, 13062, 15183, 15279, 15267,
15374, 11524, 12201 to 12204, 11187, 14007, 13411, 14941 and 13285 of 2015;
For Respondent-1 in WP(MD)Nos.14763, 16062, 14928, 15107, 15392, 15523,
15635, 15670, 14039, 13929, 14650, 14844, 18296 and 14951 of 2015;
For Respondent-2 in WP(MD)Nos.13073, 16040, 11495, 18251 and 15322 of 2015
and 12883 of 2014
Mr.T.S.Mohammed Mohideen
:COMMON ORDER
(Order of the court was made by R.SUDHAKAR,J) This batch of writ petitions have been filed by the owners of residential/commercial buildings in the Hill Station Kodaikanal, which is covered by a special provision under Chapter-X-A of the Tamil Nadu District Municipalities Act, 1920, (in short ?the Act?), whereunder Section 217-B of the Act prohibits construction or reconstruction of buildings, etc., without licence. In almost all these cases, the owners of the buildings in question made applications to the Executive Authority of the Kodaikanal Municipality for licence/permission in terms of Section 217-C of the Act, either for construction of residential building or for commercial building. Licences have been granted and they have also put-up construction.
2.In a public interest litigation in W.P.No.268 of 2004, orders came to be passed, directing the authorities to enforce the provisions of relevant Acts and Rules, in respect of alleged unauthorized constructions, constructions deviating from plan approval, etc. in hill stations. It was pointed out that the owners, on the basis of the licence granted by the competent authority, have constructed buildings in violation of the licence granted and the plan approved and further those buildings are being used for a purpose different from the licence granted. It was also submitted that there are cases where buildings have been constructed without planning permission.
3.On such a direction being issued by the Court, the municipal authorities pursued the matter and issued notices, in exercise of powers conferred under Sections 56 and 57 of the Town and Country Planning Act, calling upon the owners,
(a)to stop unauthroised construction;
(b)to demolish the unauthorized constructions and report the same to the authorities concerned; and
(c)the notices go on to state that if the direction issued by the authorities are not complied with, the authorities will proceed to take action, as provided bylaw.
In addition to the above, further notices were issued in exercise of power under Section 217-J of the Act, which provides power to stop work and for imposing penalty.
4.Consequent to the above notices, this batch of writ petitions have been filed by the owners, contending as follows:
(a)Notices issued under Sections 56 and 57 of the Tamil Nadu Town and Country Planning Act, 1971, is without jurisdiction, as it will not apply to the buildings falling under Chapter-X-A of the Tamil Nadu District Municipalities Act, 1920, referring to Section 217-O of the Act, which reads as follows:
?271-O.Chapter to override other laws.--(1)The provisions of this Chapter shall have effect notwithstanding anything inconsistent therewith contained in this Act or any other law, custom, usage or contract.
(2)Save as otherwise provided in sub-section (1), the provisions of this Chapter shall be in addition to, and not in derogation of, any other provisions of this Act.?
(b)The next contention is that most of the buildings were constructed or reconstructed, as residential buildings for which licence has been granted in exercise of power under Section 217-DD of the Act, however for different use of the building, that is to say, commercial use, action has been proposed. It is contended that in respect of the present proceedings, in the absence of Committee for Architectural and Aesthetic Aspects (in short "AAA Committee"), as envisaged in Clause (a) of Section (3) of Section 217-C of the Act, the petitioners are unable to seek permission or approval. They are suffering prejudice by the action taken and the absence of remedial avenue.
(c)In case of buildings other than falling under Section 217-
DD, the provision of Section 217-C would apply and in such cases, all the owners, who have constructed buildings for residential or commercial use, in excess of the area prescribed under Section 217-DD, they are awaiting the approval of the defunct Architectural and Aesthetic Aspects Committee, in short "AAA Committee", in terms of Section 217-C. In the absence of such a Committee for a long number of years, the petitioners cannot be faulted and therefore the proceedings for lock and sealing is an arbitrary act on the part of the respondents, besides being unreasonable.
5.M/s.M.Ajmal Khan, Lajapathy Roy, B.Saravanan, R.Devaraj, K.P.S.Palanivel Rajan, R.Gandhi, N.Ranjith, M.Dharmaraj, N.Satish Babu, V.Muthukamatchi, G.Anbu Saravanan, Vijaya Shankar, S.E.Monica Vincent, P.Muthuvijayapandian and Saravanan, learned counsel appearing for the petitioners, primarily contended that since the impugned proceedings is without jurisdiction, the Court should strike down the entire proceedings.
6.On the contrary, Mr.T.S.Mohammed Mohideen, learned counsel appearing for Kodaikanal Municipality, referring to the various provisions, submitted that the authorities have the jurisdiction under Section 11(1) of the Town and Country Planning Act, to proceed even in respect of buildings falling under Chapter-X-A of the Tamil Nadu District Municipalities Act, 1920. He further submitted that many of the petitioners have invoked provisions of Section 80-A of the Tamil Nadu Town and Country Planning Act, for alternative remedy, which reads as follows:
"80-A.Special Powers of Government.-- (1)Notwithstanding anything contained in section 80, the Government may, on application, call for and examine the records of the appropriate planning authority in respect of sealing of the premises under sub-section (2-A) of section 56 or under sub- section (4) of section 57 and if, in any case, it appears to the Government that any such action or decision should be modified annulled, reversed or remitted for reconsideration, they may pass orders accordingly;
Provided that every application to the Government for the exercise of the powers under this section shall be preferred within thirty days from the date of sealing;
Provided further that such application for revision shall be disposed of by the Government within ninety days from the date of receipt of the application.
(2)No order prejudicial to any person shall be passed under sub-section (1) unless such person has been given an opportunity of making his representation.
(3)The Government may pass such interim order, as they may deem fit, pending the exercise of the powers under sub-section (1) in respect thereof."
He further submitted that some of the petitioners have filed applications for interim relief against locking and sealing or demolition and the same are pending before the Government. Therefore, according to him, there is no justification to maintain the present batch of writ petitions. The petitioners should pursue the alternative remedy. It is also an effective remedy by law.
7.We have heard the learned counsel for the parties and considered rival contentions.
8.We find that the stage has not come for this Court to hear all these matters, more particularly in view of the fact that almost all the petitioners have exercised the option of filing an appeal under Section 80-A of the Tamil Nadu Town and Country Planning Act, invoking the special power of the Government to deal with applications in relation to locking and sealing of premises, by invoking Sections 56 and 57 of the Tamil Nadu Town and Country Planning Act. In such a scenario, when an effective appeal remedy is provided under statute and that has been invoked by the petitioners, we find no reason as to why we should entertain these writ petitions.
9.The above conclusion leads to next question as to whether the jurisdiction issue could be addressed by the Government. The plea that in view of special provision of Chapter-X-A of the Tamil nadu District Municipalities Act, 1920, in respect of hill areas, the respondent authorities have no jurisdiction to enforce the power under the Tamil Nadu Town and Country Planning Act, is also an issue which can be considered by the Government, if it is to be found to be justified. To correct the error in the proceedings of the respondent, who has invoked Sections 56 and 57 of the Tamil Nadu Town and Country Planning Act, the Government also has the power and that has been invoked.
10.It is for the Government to ensure that Executive Authorities function within the parameters of law, by applying the correct provisions of law. The issue as to whether the notices under challenge are invalid by law could be considered by the Government itself, if the petitioners in their appeals are able to justify the same. We also notice that insofar as permission granted for construction of buildings under Section 217-DD are concerned, if there is different user, then it is for the person concerned to justify the same, on fact that there is no deviation of the licence granted. That issue of fact can also be gone into by the Government in appeal.
11.On the other hand, if it is a case of residential or commercial building,in excess of the area as specified in Section 217-DD and where Section 217-C would apply, then the provision of Section 217-C has to be followed. In this issue, petitioners have a predicament. It is emphatically stated that the State Government has not constituted AAA Committee, as envisaged in Section 217-C of the Act, referred to above. A detailed procedure has been prescribed in Section 217-C of the Act for this purpose. The Government is the authority to constitute the Committee and the appellate authority. We, therefore, find no reason as to why the Government should not consider the plea of these petitioners that their cases should be examined in the light of their applications filed in terms of Section 217-C of the Act. If and when a Committee is formed, without delay, they would be entitled to seek licence in terms of Section 217-B. The role of the said committee, namely AAA committee, has been set out in detail in Section 217-C and that provides for a special method of construction of buildings in hill stations. The Government should have, in all promptness, ensured that such Committee is in place, given the circumstances that a large number of constructions are made, both commercial and residential in Hill Stations. It applies both in Kodaikanal and Nilgiris. We are pained to state that the State Government, by not constituting such Committee, is also responsible for the chaotic situation by which these buildings are under the scanner of the High Court and directions have been issued for locking and sealing or demolition. We, therefore, have no hesitation to observe that the Government should appoint the said committee in terms of Section 217-C(3)(a) within four weeks from the date of receipt of a copy of this order and report compliance.
12.The importance of AAA Committee can be better highlighted by referring to the whole Section 217-C, which reads asunder:
"217-C.Application for licence.--(1)Every application for a licence under section 217-B shall be in such form, contain such particulars and be accompanied by such plans and fee as may be prescribed and shall be submitted to the executive authority.
(2)On receipt of an application under sub-section (1), the executive authority shall, within such time as may be prescribed, examine the application with reference to such building rules as may be prescribed for the purpose of the Chapter and forward the same to the Committee.
(3)(a)For the purpose of this Chapter, the State Government may constitute a Committee called the Committee for Architectural and Aesthetic Aspects for all the hill stations in the State of Tamil Nadu, with such number of officials and non-officials and having such qualifications as may be prescribed.
(b)The term of office of the non-official members of the Committee and other matters relating to the conduct of the meeting of the said Committee including the allowances payable to the non-official members shall be such as may be prescribed.
(4)The Committee shall examine every application received from the executive authority in all aspects and forward the same to the State Government with its remarks.
(5)The Committee shall, while examining the applications under sub- section (4), shall have regard to the following matters, namely:--
(a)the application for grant of a licence complies with the provisions of this Chapter and rules made thereunder;
(b)the proposed construction or reconstruction of the building or the purpose for which the land is proposed to be used will not be detrimental to the scenic beauty and natural environment of the hill station;
(c)the proposed construction or reconstruction of a building will aesthetically and architecturally harmonize with the landscape of the hill station;
(d)the possibility of the construction or reconstruction of building, the non-agricultural purpose for which the land is to be used or the carrying out of any engineering, mining or other allied operations.--
(i)creating unfavourable conditions upon the scenic beauty and natural environment of the hill station; or
(ii)resulting in concentration of population in and around the hill station;
(e)that the proposed use of land will not lead to deforestation and soil erosion;
(f)that the proposed use of land will preserve the special characteristics of the hill station as regards landscape, vegetative over and climate of the hill station;
(g)the free passage or way to be left in front of the building as may be prescribed;
(h)the open space to be left about the building to secure free circulation of air and the prevention of fire and to facilitate scavenging;
(i)the ventilation of the building, the minimum cubic area of the rooms and the number and height of the storeys of which the building may exists.
(j)the provision and position of drains, latrines, urinals and cessdoors or other receptacles for rubbish or filth;
(k)the level and width of the foundation, the level of the lowest floor and the stability of the structure;
(l)the line of frontage, with neighbouring buildings if the building abuts on street;
(m)the means of egress from the building in case of fire;
(n)the materials to be used for, and the method of construction of, external and partition walls, rooms, floors, fireplaces and chimneys;
(o)the height and slope of the roof above the upper-most floor on which human beings are to live or cooking is to be done;
(p)any other matter affecting the ventilation and sanitation of the building; and
(q)such other matters as may be prescribed."
The above clearly shows the important factors which should be taken into consideration while putting-up constructions, other than buildings falling under Section 217-DD. In order to protect and maintain the scenic beauty and natural environment of the hill station, constitution of AAA is essential.
13. Insofar as the present batch of writ petitions are concerned, many of the petitioners have filed appeals to the State Government, as against the impugned notices, invoking Section 80-A of the Tamil Nadu Town and Country Planning Act. We would also like to point out that the power of the Government is not restricted or circumscribed. They have power to grant interim or interlocutory relief, if such applications are filed by the petitioners, along with appeals, establishing prima facie case that the impugned lock and seal proceedings inter alia are onerous and prejudicial to their interest. If these petitioners have not filed any application for interlocutory orders to safeguard their interest pending appeals, they would be entitled to file applications forthwith, seeking interim relief. In cases where no appeals have been filed, we permit such petitioners to file appeals within two weeks from the date of receipt of a copy of this order, as the grounds raised and the materials annexed in support of their case are already available in the form of affidavits filed in support of the writ petitions and the typed-set of papers. We hold that there is an effective alternative remedy.
14.In view of the above, we dispose of the writ petitions with the following order:
(a)In cases where the writ petitioners, who have filed appeals, challenging the impugned proceedings, along with an application for interim relief, the Government is directed to take up the applications for interlocutory orders for hearing and dispose of the same at the earliest, preferably by two weeks.
(b)Wherever appeals have been filed before the Government without interlocutory applications, the petitioners in those cases are entitled to make an application for interlocutory relief within two weeks from the date of receipt of a copy of this order, which shall be disposed of by the Government, at the earliest, preferably by two weeks.
(c)In cases where no appeals have been filed by any one of the petitioners, they would be entitled to file an appeal, along with an application for interim relief, within two weeks from the date of receipt of a copy of this order and interlocutory applications in those cases shall be disposed of by the Government, at the earliest, preferably by two weeks.
(d)The petitioners in each one of the cases shall furnish the details of appeal memorandum and interlocutory petitions duly filed and acknowledgment by the Government, to the respondent authority, by proper letter, informing the date and number of the appeal and the interlocutory petition filed. If any interlocutory order is granted in their favour, the same shall also be intimated to the respondent authority, forthwith. If the writ petitioners do not give or fail to furnish details of appeals/interlocutory petitions or, the interlocutory orders to the respondent authorities, in the proper manner, within seven days from the date of filing of the appeals or grant of interim orders, the respondent authorities will be entitled to proceed further in the matter as per the notices. In all the cases, further hearing of the appeals/interlocutory applications to be intimated to the respondent authority from time to time.
(e)If proper details are not furnished to the respondent authority, the authorities are entitled to pursue the matter, further, as per law.
(f)In case, no appeal, along with application for interim relief is filed within the time prescribed as above, the respondent authorities are entitled to proceed further, without any reference to this Court.
15.In view of the above directions, till the appeals are filed and the interlocutory applications are disposed of by the Government within the time limit indicated, the respondent authorities shall refrain from taking further coercive action. Pending appeal proceedings before the Government, none of the petitioners be entitled to put up any further construction or modification of the buildings or use the buildings in violation of the approved plans.
No order as to costs. Connected miscellaneous petitions are closed.
To
1.The Deputy Director of Town and Country Planning, 4, Hakkim Amalkhan Road, chinna Chokkikulam, Madurai-625 002.
2.The Member Secretary, Kodaikanal Local Planning Authority, Kodaikanal, Dindigul District.
3.The Commissioner, Kodaikanal Municipality, Kodaikanal, Dindigul District.
4.The Secretary to Government, Municipal Administration and Water Supply Department, Fort St.George, Chennai-9..