Madras High Court
S. Ravi vs Commissioner, Municipal Corporation ... on 28 April, 1994
Equivalent citations: (1994)2MLJ295
ORDER Somasundaram, J.
1. The petitioner in W.P. No. 10493 of 1987 and W.P. No. 1191 is an association whose members are the owners of houses in Manohar Avenue, Egmore, Madras. W.P. No. 10493 of 1987 is filed for the issue of writ of certiorari to quash G.O.Ms. No. 1119, Housing and Urban Development Department, dated 30.7.1987. W.P. No. 1191 of 1988 is filed by the petitioner-association for the issue of writ of certiorari to quash the order of the Madras Metropolitan Development Authority, Madras in its proceedings Permit No. B/4005/319 A & B/87, dated 6.10.1987. Since the respondents in W.P. No. 10493 of 1987 and W.P. No. 1191 of 1988 took an objection that W.P. Nos. 10493 of 1987 and 1191 of 1988 filed by the association are not maintainable, the residents of Manohar Avenue Egmore, Madras-8 who are the members of the association petitioner in W.P.Nos. 10493 of 1987 and 1191 of 1988 have filed W.P. Nos. 1580 to 1582 of 1991. In W.P. No. 1580 of 1991 the petitioners have prayed for the issue of a writ of certiorari to quash the order of the Corporation of Madras in Proceedings No. C.P.P. (G) W.D. IV. 494, dated 27.10.1987 granting building permit in favour of the 4th respondent in W.P. No. 10493 of 1987. The prayer in W.P. No. 1581 of 1991 is to issue a writ of certiorari to quash the order of the Government in G.O.Ms. No. 1119, Housing and Urban Development Department, dated 30.7.1987. W.P. No. 1582 of 1991 is filed to quash the order of the Madras Metropolitan Development Authority (hereinafter referred to as the M.M.D.A.) in its proceedings No. P.P.B.4005/319 A & B/87 dated 6.10.1987. W.P. No. 5851 of 1984 is filed by one Ravi Rajan, a resident of Manohar Avenue, Egmore, Madras for the issue of a writ of mandamus for directing the Commissioner, Corporation of Madras' to exercise the powers conferred under Sections 256 and 256-A of the Madras City Municipal (Corporation) Act, 1919 by stopping the illegal construction in Plot No. 11-C, Manohar Avenue, Egmore, Madras-8 and to initiate proceedings for removing the illegal constructions put up on the said plot. Inasmuch as the parties to these writ petitions and the points raised are one and the same, these writ petitions are disposed of by this common order. For the sake of convenience, the parties are referred to as per the nomenclature given in W.P. No. 10493 of 1987.
2. The facts leading to the filing of the above writ petitions as disclosed by in. the affidavit filed in support of W.P. No. 10493 of 1987 are as follows : The plots on either side of Manohar Avenue, Egmore, Madras, which is a 20 ft. wide blind street, have been formed under a layout LA 97/67 sanctioned by the third respondent. As per condition No. 4 of the lay out, only one detached dwelling house for occupation by a single family shall be permissible in a site and no building shall be designed for being let out as separate tenaments for more than one family. In accordance with the terms of the lay out, each of the owners have constructed one residential building on their respective plots. The 4th respondent are the owners of Plot No. 11-C. The lay out conditions contemplated that there will be only 12 families residing in 12 plots provided and accordingly the drainage, water facilities have been provided for the said lay out. On 29.6.1981, the 4th respondent-owners of Plot No. 11-C secured a building permit which enabled the owners to construct about 20,000 sq.ft. on 2 ground plot. There was no construction pursuant to the building permit, dated 29.6.1981 until 20.3.1982 on which date the authorities of the Corporation of Madras inspected the premises. Finding that there has been no commencement of construction, the 3rd respondent issued a notice to the 4th respondent cancelling the building permit which had lapsed and required them not to proceed with the construction under the lapsed permit. The 4th respondent, aggrieved by the said notice issued by the 3rd respondent filed W.P. No. 3390 of 1982 before this Court and in W.M.P. No. 5164of 1982 obtained an order staying the proceedings by the Commissioner on 26.4.1982. Taking advantage of the stay order, the 4th respondent, commenced construction subsequent to 26.4.1982. In those circumstances, some of the members of the petitioner-association filed a suit O.S. No. 3035 of 1982 on the file of the City Civil Court, Madras for requiring the Commissioner to take action and to injunct the owners from proceeding with the construction. Subsequently the residents of the area filed W.P. No. 8725 of 1982 before this Court and in W.M.P. No. 13061 of 1982 obtained an interim injunction restraining the 4th respondent from proceeding with the construction. The said writ petition was subsequently dismissed as infructuous. Thereafter, the 4th respondent, withdrew their W.P. No. 3390 of 1982 stating that they were filingan appeal before the Government against the order of the Commissioner cancelling the building permit and directing the 4th respondent not to proceed with the construction under the lapsed permit. The appeal preferred by the 4th respondent against the order of the Commissioner before the first respondent was dismissed on 25.1.1983. Thereafter, the 4th respondent, filed W.P. No. 3392 of 1984 before this Court against the order dated 25.1.1983 passed by the first respondent and obtained an order of injunction preventing the Commissioner, Corporation of Madras, from interferring with the construction. Taking advantage of the order of injunction, the 4th respondent continued the construction. On 8.5.1984 this Court vacated the injuction granted in W.P. No. 3392 of 1984. Thereafter, the 4th respondent applied for revalidation of the building permit and planning permit to the Corporation Of Madras, which was forwarded to the M.M.D.A. the 2nd respondent herein on 23.5.1984. On inspection it was found that the construction made up to the first floor roof level was in deviation and therefore, it could not be considered for renewing the planning permission and hence the said application was treated as an application for fresh planning permission and it was rejected by the M.M.D.A. on the ground of violations with reference to Rule 19(b) of the Development Control Rules relating to special buildings. Thereafter, the 4th respondent, preferred an appeal before the Government under Section 79 of the Tamil Nadu Town and Country Planning Act, 1971 (hereinafter referred to as the Act) praying for the grant of planning permission with regard to the said construction. The Government, after getting remarks from the M.M.D.A., the second respondent herein, allowed the appeal and passed the order in G.O.Ms. No. 1119, Housing and Urban Development Department,- dated 30.7.1987. The said Government Order has exempted the violations made by the 4th respondent, to the extent of violations pointed out by the M.M.D.A. The exemption was granted by the Government in exercise of the power under Section 113 of the Act. The said G.O.Ms. No. 1119, Housingand Urban Development Department, dated 30.7.1987 is challenged in W.P. No. 10493 of 1987 and in W.P. No. 1581 of 1990. On the basis of G.O.Ms. No. 1119, dated 30.7.1987, the second respondent issued the planning permit to the 4th respondent in its proceedings No. P.P.B. 4005/319 A & B/87, dated 6.10.1987 and the said planning permit is challenged in W.P. No. 1582 of 1991. Similarly pursuant to G.O.Ms. No. 1119, Housing and Urban Development Department, dated 30.7.1987, the 3rd respondent issued building permit to the 4th respondent on 27.10.1987 in its proceedings No. C.P.P.(G) W.D. IV. 494 and the said proceedings of the 3rd respondent is challenged in W.P. No. 1580 of 1991.
3. Mr. Vedantham Srinivasan and Mr. Vijaynarayan, learned Counsel for the petitioners raised the following contentions in these writ petitions.
(1) The impugned G.O.Ms. No. 1119, Housing and Urban Development, dated 30.7.1987 has been passed in total violation of the principles of natural justice. The members of the petitioner-association have made repeated representations to the first respondent requesting the Government to furnish the grounds of appeal filed by the 4th respondent, against the order of the second respondent refusing planning permit and also to implead the members of the petitioner-association as respondents in the appeal and hear them before granting any permission to the 4th respondent. The first respondent have not given an opportunity to the members of the petitioner-association to put forth their objections against the grant of any permission to the 4th respondent and they have not heard the members of the petitioner-association before passing the impugned Government Order. Hence the impugned Government Order has been issued in total violation of the principles of natural justice and it is liable to be quashed. There were number of legal proceedings in the form of writ petitions before this Court and civil suit before the City Civil Court between the 4th respondent on the one hand and the members of the petitioner-association on the other, with regard to putting up a construction in Plot No. 11-C, Manohar Avenue, Egmore, Madras. In view of the fact that the members of the petitioner-association were parties in the earlier court proceedings and in view of the repeated requests made by the members of the petitioner-association to the first respondent to implead them as parties in the appeal filed by the 4th respondent under Section 79ofthe Act and to hear them before deciding the appeal, the impugned Government Order passed by the first respondent without giving an opportunity to the petitioner-association to put forth their objections and without hearing the petitioner-association is violative of the principles of natural justice and therefore the impugned Government Order is liable to be quashed.
(2) The exemption granted by the first respondent, in the instant case, is beyond its competence under Section 113 of the Act. The exemption contemplated under Section 113 could be granted only for class of land or buildings. Section 113 does not provide for condoning of violations in buildings. The power under Section 113 could be exercised only for promoting the objects of the Act to alliviate undue hardship caused to individuals by the regid application of rules in special cases and not for approving the violations of the Development Control Rules. Inasmuch as the impugned Government Order condoned contains the wholesale violations, it is beyond the competence of the first respondent and the impugned Government Order is a mala fide order. Further the counter-affidavit filed by the first respondent also does not disclose any undue hardship justifying the exemption contemplated under Section 113 of the Act. The Government by granting exemption has only compounded the offences, because, under Sections 56 and 57 of the Act, penalties are attached to violations. The impugned Government Order does not advance the objects of the Act but only nullifies the earlier order of the Government dismissing the appeal filed by the 4th respondent.
(3) The impugned Government Order is invalid, because, there is an abuse of exercise of discretionary power conferred under Section 113 of the Act. The Government having already dismissed the appeal filed by the 4th respondent on 24.1.1983 on the ground there is violation of the provisions of the Act, it is not at all justified in granting the exemption in the absence of a change of circumstances after the disposal of the appeal warranting the grant of exemption. In the present case, there is no such change of circumstances, warranting the grant of exemption after the dismissal of the appeal filed by the 4th respondent on 24.1.1983. Further at no stage a planning permit was sanctioned by the authorities to enable the 4th respondent to put up the construction in site No. 11-C-of Manohar Avenue. At every stage, the 4th respondent proceeded with the construction taking advantage of the stay orders of court which in fact did not enable the 4th respondent to put up construction without a valid building permit. At no stage the 4th respondent had valid permit in conformity with the provisions of the Act or Rules for proceeding with the construction. Therefore, there is no bona fide on the part of the 4th respondents.
(4) The exemption is granted by the impugned order on totally extraneous considerations which can be gathered from the following circumstances:
(a) the exemption order proceeded on the basis that the building has already been completed;
(b) it ignores the fact that the construction already made was in violation of the Development Control Rules;
(c) the recommendations of the second respondent, were given a go-by and
(d) no reasons is given in the impugned order for granting exemption.
(5) The exemption granted under the impugned Government Order is against public policy; public interest and against the provisions of the Act.
(6) The impugned Government Order granting exemption is invalid, because, no reasons are given in the impugned Government Order for granting exemption. The reasons given in the counter affidavit filed by the first respondent, for granting exemption are not proper reasons.
4. Per contra, Mr. A.L. Somayaji, learned Counsel for the 4th respondent submitted in the first place that the very purpose of exemption contemplated in Section 113 of the Act is to exempt any building from any of the provisions of the Act, Rules and Regulations made thereunder and it cannot be said that exemption can be granted under Section 113 of the Act only when the provisions of the Act, Rules and regulations are complied with and if such construction is put, the very purpose for which Section 113 was inserted will be defeated. The learned Counsel for the 4th respondent referring to the recommendations of the M.M.D.A. submitted that such recommendations of the M.M.D.A. are only recommendatory in nature and are not binding on the Government while granting exemption under Section 113 of the Act. Referring to the submissions of the learned Counsel for the petitioner, that the impugned Government Order is violative of the principles of natural justice, Mr. A.L. Somayaji, learned Counsel for the 4th respondent submitted that when an appeal is filed by the owner of the premises under Section 79 against an order refusing planning permission and when an application is made by the owner of the premises under Section 113 seeking exemption there is no need-to hear the third parties like the petitioners, because, it is a matter between the Government and the applicant. Therefore, the impugned order is not vitiated on the ground of violation of the principles of natural justice. The learned Counsel for the 4th respondent also submitted that the impugnged Government Order cannot be challenged on the ground that it does not contain the reasons. The contention of the learned Counsel for the 4th respondent is that the order granting exemption under Section 113 of the Act need not contain reasons and in support of the above contention, the learned Counsel relied on the decision in P. Dwaraknath Reddy v. New India Maritime Agencies Pvt. Ltd. 1990 T.L.N.J. 431. The further contention of the learned Counsel for the 4th respondent, is that the exemption granted in this case, under the impugned Government Order is not against public policy and the provisions of the Act and the Rules and the first respondent has properly exercised its power under Section 113 of the Act granting the exemption in respect of the building in question by the impugned Government Order. The learned Counsel also submitted that the construction of basement, ground and three floors in Plot No. 1l-C,Manohar Avenue, Egmore, will not in anyway affect the public interest or public policy. The learned Counsel for the 4th respondent again contended that the petitioners have not placed any material to prove mala fide alleged against the first respondent in passing the impugned Government Order.
5. In the light of the rival contentions of the learned Counsel for the parties, the first question we have to examine is whether the Government Order Ms. No. 1ll9,Housingand Urban Development Department, dated 30.7.1987 passed by the Government without giving an opportunity to the petitioner-association to put forth its objections and without hearing the members of the petitioner-association is invalid on the ground that it is violative of the principles of natural justice. The contention of the learned Counsel for the petitioner in this regard is that, throughout the members of the petitioner-association who are neighbours and residents of Manohar Avenue, Egmore were objecting to the 4th respondent putting up a multistoreyed building in Plot No. 11-C, on the ground that as per condition No. 4 of the lay out, only one detached dwelling house for occupation by a single family is permitted in a site, that there were number of court proceedings either byway of writ petitions or by way of civil suits between the members of the petitioner-association on the one hand and the 4th respondent on the other with regard to construction of a multistoried building in Plot No. 11-C belonging to the 4th respondent; that inasmuch as the members of the petitioner-association and the 4th respondent were impleaded as parties in all the court proceedings, the members of the petitioner-association are interested parties and affected persons in the appeal filed by the 4th respondent under Section 79 of the Act before the first respondent, also seeking exemption under Section 113 and therefore, the impugned Government Order No. 1119, Housing and Urban Development Department, dated 30.7.1987 passed by the first respondent granting exemption and allowing the appeal filed under Sec79 without hearing the petitioner-association in spite of the repeated requests to the first respondent to furnish them with the copies of the grounds of appeal and to hear them, is violative of the principles of natural justice and therefore, it is invalid and liable to be quashed. There is substance in the above contention of the learned Counsel for the petitioners.
6. Let us first examine the back drop of law on the subject before going into the factual details of this case. It is a settled position of law that even if exercise of power is purely administrative nature, if it adversely affects any person the principles of natural justice must be observed and the person concerned must be heard. Violation of the principles of natural justice makes the exercise of power ultra vires and void. It is equally well settled, that if there is a power to decide to the pre justice of a person, the nature of such statutory duty itself implies an obligation on the part of the statutory authority exercising, the power, to hear the affected person before taking a decision. The Apex Court has repeatedly held that where there is nothing in the statute which prohibits giving of an opportunity to the affected person to be heard, the audi alteram partem rule could be imported.
7. In S.C. & W.S. Welfare Association v. State of Karnataka , the Apex Court has held as follows:
It is one of fundamental rules of our constitutional set-up that every citizen is protected against exercise of arbitrary authority by the State or its officers. If there is power to decide and determine to the prejudice of a person, duty to act judicially is implicit in the exercise of such power and the rule of natural justice operates in areas not covered by any law validly made. What particular rule of natural justice should apply to a given case must depend to an extent on the facts and circumstances of that case, the framework of the law under which the enquiry is held and that body of persons appointed for that purpose. It is only where there is nothing in the statute to actually prohibit the giving of an opportunity to be heard, but on the other hand, the nature of the statutory duty imposed itself necessarily implied an obligation to hear before deciding, that the audi alteram partem rule could be imported.
Next we have to examine is, "who is a person aggrieved" or a "party affected;" who is entitled to pre-decisional opportunity of being heard by a statutory authority before such authority takes a decision?. In S.C. & W.S. Welfare Association v. State of Karnataka , the Supreme Court has held that where the action of the Government affects a class of persons and if that group of persons is represented by an association, they have a right to be heard in the matter before the decision or action is taken by the Government.
8. In Bangalore Medical Trust v. B.S. Muddappa , the Apex Court while holding that the writ petition filed by the inhabitants of a locality whose park was converted into a nursing home is maintainable observed as follows:
The restricted meaning of aggrieved person and narrow outlook of specific injury has yielded in favour of broad and wide construction in wake of public interest litigation, Even in private challenge to executive or administrative action having extensive fall out the dividing line between personal injury or loss and injury of a public nature is fast vanishing. Law has veered round from genuine grievance against order affecting prejudicially to sufficient interest in the matter. The rise in exercise of power by the executive and compararive decline in proper and effective administrative guidance is forcing citizens to espouse challenges with public interest flavour. It is too late in the day, therefore, to claim that petition filed by inhabitants of a locality whose park was converted into a nursing home had no cause to invoke equity jurisdiction of the High Court. In fact public spirited citizens having faith in rule of law are rendering great social and legal service by espousing cause of public nature. They cannot be ignored or overlooked on technical or conservative yardstick of the rule of locus standi or absence of personal loss or injury. Present day development of this branch of jurisprudence is towards freer movement both in nature of litigation and approach of the courts. Residents of locality seeking protection and maintenance of environment of their locality cannot be said to be busy bodies or interlopers. Even otherwise physical or personal or economic injury may give rise to civil or criminal action but violation of rule of law either by ignoring or affronting individual or action of the executive in disregard of the provisions of law raises substantial issue of accountability of those entrusted with responsibility of the administration. It furnishes enough cause of action either for individual or community in general to approach byway of writ petition and the authorities cannot be permitted to seek shelter under cover of technicalities of locus standi nor they can be heard to plead for restraint in exercise of discretion as grave issues of public concern outweigh such considerations.
9. In Mrs. Nalini Chidambaram v. State of Tamil Nadu , the question arose whether the neighbours of the premises in which certain constructions were proposed to be put up by the 4th respondent in that case, can be considered as aggrieved person, Bakthavatsalam, J. while holding that the petitioners in that case who are neighbours are aggrieved persons held as follows:
12. An important point, that arises for consideration in these cases, in my view, is whether on the facts and circumstances of the cases the petitioners in all these cases can be said to be "aggrived persons" at all, to come before this Court and invoke the extraordinary jurisdiction under Article 226 of the Constitution of India. As I have already narrated in the facts, the premises in which the proposed construction is to be done adjoins the houses of the petitioners herein. The Supreme Court had an occasion to consider the locus standi of a person to invoke certiorari jurisdiction in the case in J.M. Desai v. Roshan Kumar , in which the Supreme Court observed as follows (at P.581):
...In order to have the locus standi to invoke certiorari jurisdiction, the petitioner should be an "aggrieved person" denotes an elastic and, to an extent, elusive concept. Its scope and meaning depends on diverse, variable factor such as the content and intent of the statute of which contravention is alleged, the specific circumstances of case, the nature and extent of the petitioner's interest, and the nature and extent of the prejudice or injury suffered by him....
In the said case, the Supreme Court further observed as follows:
It does not include a mere busy body who is interfering in things which do not concern him but it includes any person who has a genuine grievance because something has been done or may be done which affects him....
In the said case the Supreme Court has considered the case of Attorney General of the Gambai v. N'Jie 1961 A.C.C. 617 and Mourice v. London County Council (1964) 2 Q.B. 362. In Mourice v. London County Council (1964) 2 Q.B. 362 the case was concerned with regard to the consent to building over 100 feet. An objection was taken by the owner. The question raised, in that case was whether the owner of the premises within 100 feet could be said to be a person aggrieved, and that whether grievances impinging on town planning considerations including loss of visual amenity may be considered, by tribunal of appeal under the London Building Act, 1930. The facts of that case seems to be that the owner of premises in London situated within 100 yards of a proposed block of flats more than 100 ft. high, appealed under Section 52(2)(a) of the London Building Act, 1930, as a person who deemed herself aggrieved, against a consent granted to themselves by the London County Council under Section 51 of the Act of 1930 as amended by Section 5 of the London County Council (General Powers) Act, 1954. The appeal preferred by the owner was allowed holding that "the owner was entitled to have the tribunal consider loss of amenities, including visual amenity, in so far as it affected her interest in her property". In that case while considering the scope of Sections 51 and 52(a) of London Act, 1930 Lord Denning discussed the meaning of the word 'aggrieved person' and observed as follows (at 377) ...It is quite clear that the person must be aggrieved in respect of his interest in a building or land within 100 yards. But there is no limitation whatever as to the kind of grievance. I can see no reason whatever for excluding loss of amenities.
It will be useful to refer to another passage of Lord Denning at this stage. In the Book "The Discipline of Law" Lord Denning has written as follows: (at P. 115) Person Aggrieved In many statutes it is enacted that, in case of non-compliance 'person aggrieved' may complain to the courts or to a tribunal. During the 19th century those words where construed very restrictively. It was said that a man was not a 'person aggrieved* unless he himself has suffered particular loss in that he had been injuriously affected in his money or property right. He was not 'aggrieved' simply because he has a grievance. That was laid down 1880 by a distinguished Judge, Lord Justice James, in the Sudebotham Case (1880) 14 Ch. D. 458 at 465. But a case came before Lord Justice Parker and myself in 1957 when we departed from that old test. It is a case which is only reported in the Local Government reports - R. Thames Magistrates' Court (1957) 5 L.G.R. 129. It was about a pitch in a street market in Bermondsey. The Magistrates had awarded the pitch to a seller of jelliedeels. But a newspaper seller thought that he ought to have had the pitch. He has no legal right to the pitch. But we held that he had a locus standi and quashed the order of the Magistrates. This was followed a few years later by the case of a rate payer who said that the valuation list of the whole area had not been properly prepared. He was not able to show that his own property was rated wrongly. His only complaint was that the whole list was wrong. In this case, R. v. Paddinggon Valuation Officer, Ex pane Peachey Property Corporation Limited (1966) 1 Q.B. 380, said:
The question is whether the Peachey Property Corporation are "persons aggrieved so as to be entitled to ask for certiorari or mandamus. Mr. Blain contended that they are not persons aggrieved because, even if they succeeded in increasing all the gross values of other people in the Paddington area, it would not make a pennyworth of difference to them.... But I do not think grievances are to be measured in pounds, Shillings and Pence. If a rate payer or other person finds his name included in valuation list which is invalid, he is entitled to come to the court and apply to have it quashed. He is not to be put off by the pleas that he has suffered no damage, any more that the voters were in Ashby v. White. The court would not listen, of course, to a mere busybody who was interfering in things which did not concern him. But it will listen to anyone whose interests are affected by what has been done.... So here it will listen to any rate payer who complains that the list is invalid.
This was afterwards approved by the House of Lords in Arsenal Football Club v. Ende (1977) 2 W.L.R. 974. In the King v. Hendon Rural District Council (1933) 2 K.B. 696, it has been held that "a certiorari will lie to bring up a decision of a local authority to permit development pending the final approval by the Minister of Health of a town-planning scheme." In the instant case, the petitioner's contentions is that on account of the unauthorised construction in the plot adjoining their residences, there is great threat to sanitation in the area. The other contention of the petitioners is that since there will be only one passage for ingress and egress, the mandatory fire escape provisions have been dispensed with. The other complaint of the petitioners is that various regulations under the Town and Country Planning Act have been brought about to ensure proper sanitation in the area, prevent fire hazards, allow free ingress and egress of air and light for the neighbours, ensure easementary right and the population which the area can bear as well as the vehicular traffic which the area can accommodate. The further contention of the petitioners is that when these things are not considered by M.M.D.A. it open to them to challenge the same by way of a writ of certiorari. This being the contention of the petitioners, that the impugned Government order is an abuse of power and they are aggrieved persons to challenge the Government Order, it cannot be said that their contention is untenable. A passage in "An Introduction to Administrative Law" by Peter Cane at p. 613 can be usefully referred to:
...neighbours have sufficient interest to challenge planning decisions in respect of neighbouring lands.... Neighbours challenging Planning decisions would beheld to have sufficient interest, unless other facts of the case provided very strong ground for denying the existence of such an interest....
A Passage in Administrative Law by H.W.R. Wade (5th Edition P. 583) is referred to:
...Every citizen has standing to invite the court to prevent some abuse of power, and in doing so, he may claim to be regarded not as a meddlesome busybody, but as a public benefactor. Parker, I.J. thus stated the law as to certiorari...anybody can apply for it, a member of the public who has been inconvenienced, or a particular party or person who has a particular grievance of his own. If the application is made by what for convenience one may call a stranger, the remedy is purely discretionary. Where, however, it is made by a person who has a particular grievance of his own, whether as a party or otherwise, then the remedy lies ex debito justitiae...at p. 585.... The broad principle which almost eliminates the requirement of standing for these remedies shows how far the law has gone in the direction of admitting an element of action popular is on grounds of public interest just as it has done with mandamus and with the relator action. By such means, therefore, a remedy may be found for the citizen, who is genuinely aggrieved, but who has no grievance in the eye of the law. He may, for example, object strongly to a building for which his neighbour has been granted planning permission although legally this is no concern of his. If he can show that the permission is void, for example because the principles of natural justice have been violated, he may have it quashed by certiorari even though he could not have obtained a declaratory judgment because of his lack of personal legal right....
at p. 621 it has been stated thus.
...Thus in a planning case, it should be possible to hold that a neighbour is a 'person aggrieved' even though he may be denied a remedy because of the implication of the planning legislation that a neighbour has no standing to challenge a grant of planning permission. By disentangling the two questions the court could avoid laying down a restrictive general rule.
As already observed in the case of other remedies, the current tendency is to relax requirements as to standing and this is in accordance with an enlightened system of public law.... In several cases, the Courts have already favoured a generous interpretation of 'person aggrieved' and it is now less likely that these words will be made an obstacle to any person who may reasonably consider himself aggrieved. Judicial statements suggest that they are likely to cover any person who has a genuined grievance of whatever kind and that is tantamount to any person who reasonably wishes to bring proceedings.
A passage in "De Smith's Judicial Review of Administrative Action (IV edition - J.M. Evans - at p. 413 with regard to the term 'aggrieved person' runs as follows:
...In other contexts a person aggrieved has been understood to mean one who has a genuine grievance because an order has been made which prejudically affects his interests. Hence a householder anticipating a serious loss of amenity as a result of administrative decision to permit the building of a high block of flats nearby was entitled to appeal against the decision as person aggrieved In Attorney General of The Gambia v. Pierre Sam N. Jie 1961 A.C. 617 at 634, it has been as follows:
...Lord Esher, N.R. pointed out that in Ex pane Official Receiver, In re. Reed, Bowen & Co. (1937) 19 Q.B.D. 174, the words "person aggrieved" are of wide import and should not be subjected to a restrictive interpretation. They, do not include of course, a mere busybody who is interfering in things which do not concern him; but they do include a person who has a genuine grievance because an order has been made which prejudicially affects his interests.
When considering this question, taking note of the law enunciated by the Supreme Court and also by the English cases mentioned above, lam of the view that the petitioners who are "aggrieved" can invoke the extraordinary jurisdiction under Article 226 of the Constitution. I am not able to appreciate the contention that some manifest injustice should be shown by the petitioners before invoking the extraordinary jurisdiction of this Court. I think it is enough if the petitioners are able to show that they have got enough interest in the matter. It cannot be said that the petitioners herein are strangers or busybody or smeddle some inter-loper persons. Their grievance is justified and it cannot be said that they have no locus standi to invoke the extraordinary jurisdiction of this Court. The decisions mentioned above in J.M. Desai v. Roshan Kumar and in N.R.F. Mills v. N.T.G. and Sons , relate to a competitor in a business. There are provisions in those acts in the above mentioned cases, to raise objections. The judgment of the Pan Bench of this Court in Krishnamurthy v. The District Revenue Officer, Vellore North Arcot District 1989 T.N.L.J. 200, considered the question which arose out of locating a rice mill. The question of 'aggrieved person' was not raised and considered by S. Natarajan, J. (as he then was) in Dr. P.G. Viswanathan v. Government of Tamil Nadu 1984 W.L.R. 257. As such these cases cannot apply to the facts of the present case.
13. In these days when there is mushroom growth of flats in urban areas, in my view, the courts should have to step in and see that the authorities concerned follow the Town Planning Act and Development Control Rules properly. Nowadays, planning as a Government function has assumed importance. We are able to see the lungs of the city get fouled up by relentless building activities to subserve various vested interests. Sometimes the Building Rules evolved by the planners are deliberately flouted, great structures are built even without getting the permission and ultimately they get regularised. In R.L. and E. Kendra, Dehradun v. State of Uttar Pradesh : , the Supreme Court had an occasion to deal with imbalance to ecology and hazard to healthy environment due to working of limestone quarries. In the said decision, the Supreme Court upheld the right of the people to live in healthy environment and observed as follows : at p.656.
...This would undoubtedly cause hardship to them, but it is a price that has to be paid for protecting and safeguarding the right of the & people to live in healthy environment with minimal disturbance of ecological balance without avoidable hazard to them and to their cattle, homes and agricultural land and undue affection of air, water and environment-
I think this principle has to be applied when this Court considers about the right of the petitioners to question the planning permission given to a neighbour to construct high rise buildings. Take for instance, the area in which the petitioners residences are located. When houses were built by the petitioners herein for the residential purpose, certainly they should have submitted a plan to the Corporation and got them approved. There must be a planning for that area at that time according to which the Corporation would have granted the permission. By that time, the petitioners had the satisfaction of their residences in a locality to get air, light and proper sanitation. Suppose, if the very same area is going to be crowded by a bunch of flats, then what will happen? The very same infrastructure which remained when the houses of the petitioners were built continue, that is, the sewerage connection, water supply etc. the petitioners would naturally suffer from pollution of noise and air and traffic congestion and there will be diminution of the light and air if high rise buildings are built in that area. Considering all these aspects, one cannot say that the petitioners are not 'aggrieved persons'. In my view, certainly the petitioners have got a right to have their say before the authority concerned if they granted the permission wrongly. Considering the modern trend, in my view the courts also must give a wider meaning to the term 'aggrieved person'. It is not an answer to say that the petitioners are not inconvenienced by the construction of high rise buildings adjoining their residences belonging to them. For the reasons stated above, I hold that the petitioners herein are 'aggrieved persons'.
The above view of the learned Single Judge was confirmed by a Division Bench of this Court in Hajee Moosa Sulaiman Sait v. State of Tamil Nadu (1991) 1 M.L.J. 493 to which I am a party, in the following terms:
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 everyone of the reasonings expressed by the learned single Judge for holding that the appellants are persons aggrieved, so as to maintain the writ petitions.
10. In the light of the principles laid down by the Apex Court and this Court in the decisions referred to above, let us examine whether the petitioners can be considered as "persons affected", "persons aggrieved " by the impugned Government Order and whether they are entitled to pre-decisional opportunity of being heard by the Government before passing the impugned Government Order. It is seen from the affidavit filed in support of W.P. No. 10493 of 1987, that the plots on either side of Manohar Avenue, Egmore, Madras-8. which is a 20 feet wide blind street have been formed under a lay out L.A. 97/67 sanctioned by the third respondent and as per condition No. 4 of the lay out only one residential unit for use of one family could be built on the plots by the respective owners in accordance with the terms of the lay out, and each of the owners have constructed only one residential building in their respective plots. The 4th respondent, the owner of Plot No. 11-C, on 29.6.1981 secured a building permit from the Corporation of Madras to construct 20,000 sq.ft. on a two ground plot. Admittedly, there are number of legal proceedings initiated either by the 4th respondent or by the members of the petitioner-association with regard to the putting up of a multistoried building in Plot No. 1l-C by the 4th respondent. In all the said legal proceedings, the members of the petitioner-association and the 4th respondent were parties. As already pointed out, the 4th respondent filed W.P. No. 3390 of 1982, W.P. Nos. 2823 of 1984 and 3932 of 1982 before this Court and in all the writ petitions, the members of the petitioner association got themselves impleaded as party respondent. Similarly, the members of the petitioner-association filed the civil suit O.S. No. 3035 of 1982 on the file of the City Civil Court, Madras against the 4th respondent for a permanent injunction restraining the 4th respondent from putting up any construction in the site in question. The members of the petitioner-association also filed W.P. No. 8725 of 1982 against the 4th respondent and obtained an interim injunction restraining in the site in question. As already pointed out that in all the legal proceedings referred above, and in the present writ petitions the petitioners were objecting to the 4th respondent putting up a multistoried building measuring 20,000 sq.ft. on Plot No. 11-C on the following grounds:
(a) Manohar Avenue is a 20 feet wide blind street. Only buildings permitted as per the regulations could be allowed to be constructed in the said blind street. The construction of flats as proposed to be built by the 4th respondent is not permissible as per existing regulations prevailing on date.
(b) The proposed construction violates the right of the Members of the petitioner-association to live in healthy environment guaranteed under Article 21 of the Constitution of India. The construction of 20,000 sq.ft. on the plot of 2 grounds in a 20 feet blind street, and further construction on the rear portion would make the residential area in Manohar Avenue congested, unhealthy and noisy, thereby affecting the health and happiness of the residents who would be deprived of fresh air and light which would have otherwise been, available to them, if the constructions are alone permitted.
(c) The layout of the area is only suited for the occupation and use of 10 or 12 families. The construction of the flats would bring in 8 families immediately and another 8 families by the further construction in the rear plot. This would completely mar the residential character of the area. It is not know what use the construction would be put to as it is only a commercial construction. The residents apprehend that they may be used for non-residential purposes for storing obnoxious materials which may cause health hazards to the residents of this area.
(d) The building which the 4th respondent is proposing to put up in Plot No. 11-C, is five storied building, construction of which is prohibited under the Building Rules. The building has been so built, without, any open space in the sides. In case of fire accidents, it will be very difficult to bring the fire fighting vehicle (The snorkel), and the building would be as a source of great danger to the occupants as well as neighbouring residents of Manohar avenue.
(e) The 20 feet blind street is already congested with the existing traffic. The construction of huge commercial complex and possible further construction would introduce at least another 20 cars and it will not be possible to use the narrow 20 street. There will be permanent traffic problem, which can never be solved. There will be permanent drainage and water problems to all the residents of the area, which cannot be remedied by public authorities at a latter date. In the best interest of public welfare, it is just and necessary that the4th respondent is not permitted to put up commercial complex in Plot No. 11-C, Manohar Avenue.
The above factual materials available on record go to show that the members of the petitioner-association are very much interested in objecting to the 4th respondent putting up a multistoried building in the site in question. On 19.5.1984 the 4th respondent applied for extension of planning permit to the 3rd respondent. The said application was forwarded to the second respondent on 23.5.1984. On 14.10.1984, the second respondent rejected the 4th respondent's application for planning permit on the ground of violations with reference to Rule 19(b) of the Development Control Rules relating to the subject building on 22.10.1984. The 4th respondent preferred an appeal under Section 79 of the Act before the first respondent against the said order of the second respondent dated 14.10.1984. In the said appeal the 4th respondent also requested the first respondent to relax the rule and sanction the planning permit. Immediately thereafter the members of the petitioner-association addressed a letter dated 28.12.1984 to the first respondent and enquired whether any appeal had been preferred by the 4th respondent and if so to implead the members of the association also as parties in the said appeal. The letter dated 28.12.1984 reads thus:
MANOHAR AVENUE HOUSE OWNERS' AND RESIDENTS' ASSOCIATION, No. 11, MANOHAR AVENUE, EGMORE, MADRAS - 600 008.
Date: 28.12.1984 To The Secretary to Government, Housing & Urban Development Department, Fort St. George, Madras-600 009.I Sir, Sub : Proposed unauthorised construction of about 20,000 sq.ft. on Plot No. 11-C, Manohar Avenue, I Egmore, Madras-8 - Application of Mr. P. Thakurdas for extension of planning permit - File I No. M.M.D.A./B/6165/84.
We understand that Mr. P. Thakurdas is approaching you for extension of planning permit. Sri P. Thakurdas have been attempting to put up commercial flats of the extent of 20,000 sq.ft. on Manohar Avenue which is a 20 ft., wide blind street in Egmore, Madras. The above matter has been the subject of W.P. Nos. 3390 of 1982, 8720 of 1982, 2823 of 1984, 3932 of 1984 and the same is pending in the court. The above matter is also subject of other proceedings. As the construction of 20,000 sq.ft. is on a 2 ground plot and further construction possible on the remaining plot has been objected to by all the residents of Manohar Avenue.
In the circumstances, we request you to kindly inform us whether Mr. P. Thakurdas has preferred any appeal against the order of the Madras Metropolitan Development Authority in Proceedings Lr. No. B/6165/84, dated 14.10.1984. If any appeal has been filed we request you to kindly implead us as parties and give us an opportunity to make our representations before final orders are passed in the appeal.
We request you to kindly acknowledge this letter.
Thanking you, Yours faithfully, sd/XXXX for Manohar Avenue House Owners'and Residents' Association.
The members of the petitioner-association sent reminders on 18.2.1985 and 8.5.1985 to the first respondent, on 26.9.1985, the petitioner-association requested the first respondent to furnish the members with copies of the appeal grounds and also the report of the M.M.D.A. if any, addressed to the first respondent. The letter dated 26.9.1985 reads thus:
MANOHAR AVENUE HOUSE OWNERS AND RESIDENTS' ASSOCIATION, No. 11, Manohar Avenue, Egmore, Madras-600008.
Dated: 26.9.1985.
The Secretary to Government, Housing Department, Fort St. George, Madras-600009.
Sir, Sub : Proposed unauthorised construction of about 20000 sq. ft. on Plot No. 11-C Manohar Avenue, Egmore, Madras-8 - Application of Mr. P. Thakurdas for extension of planning permit - File No. M.M.D.A./8/6165/84.
In the above matter we had addressed you number of letters.
We reliably understand that Mr. P. Thakurdas has preferred appeal to you against the decision of the M.M.D.A. rejecting his application for extension of the planning permit. As all other residents of Manohar Avenue would be affected adversely if the planning permit is extended, we request you to furnish us the following:
1. Appeal grounds filed by P. Thakurdas.
2. Report of M.M.D.A. if any to the Government.
As all of us are vitally interested in the matter, we request you to kindly implead Manohar Avenue House Owners' and Residents' Association and the residents individually as respondents in the above appeal and hear us before any final orders are passed in the appeal. We desire to once again draw your attention that Manohar Avenue is only a 20 wide blind street and any permission enabling the construction of flats would completely ruin the residential character of the locality and be a health hazard to all of us. In his anxiety to complete the commercial complex, he (builder) had brought in political pressure at the earlier stages. Hence, we desire to come on record to place the correct facts and our objections.
Kindly acknowledge this letter.
Thanking you, Yours faithfully, Sd/-xxxxx (KRAMAGOPAL) The members of the petitioner-association made a similar request to the first respondent by the letter dated 23.10.1985. On a perusal of the file produced by the learned Government Advocate at the time of hearing of the writ petitions, I find, the letter dated 8.2.1985 sent by the petitioner-association which was received by the Secretary to Government, Housing and Urban Development on 22.2.1985. By the said letter, the petitioner-association requested the first respondent to implead the petitioner-association as party and to hear its representatives before passing final orders on the appeal filed by the 4th respondent. I find an order dated 22.2.1985 on the letter dated 28.2.1985 to the following effect:
We should hear the Association also. However, admittedly, no opportunity was given to the members of the petitioner-association to state their objections nor they were heard before the impugned Government Order was passed by the first respondent. The impugned Government Order reads thus:
HOUSING AND URBAN DEVELOPMENT DEPARTMENT G.O.Ms. No. 1119 Dated 30.7.1987 Read:
1. From Thiru P. Thakurdas and Brothers letter dated 20.10.1984.
2. From the Member Secretary, M.M.D.A. Letter No. D1/12849/84, dated 18.10.1985.
3. From the Manohar Avenue House Owners and Residents Association letter dated 26.9.1985.
4. Government Letter No. 50617/UNI(2)/84-5, dated 21.11.1985.
5. From Thiru Thakurdas and Brothers further representation dated 1.12.1985.
6. From the Member Secretary M.M.D.A. letter No. d1/12849/84 dated 29.12.1986.
ORDER:
The Government, after careful consideration of the appeal and the further representation received from Thiru P. Thakurdas and Brothers in the reference first and fifth read above and the remarks offered by the Member Secretary, Madras Metropolitan Development Authority in the matter in his letter second and sixth read above, have decided to allow the appeal and to exempt the construction made by the Thiru P. Thakurdas and Brothers at R.S. No. 479-1 Part Manohar Avenue, Plot No. 1l-C Egmore from the provisions of Rules 19(b) 1(i), C(i), 19(b) 1(i), C(ii), 19(b) I(ii) of Development Control Rules and I.S.I. requirement relating to front set back, side set back on both sides, abutting road width, height of the basement and slope of ramp respectively to the extent of violation as per the plans refused by Member Secretary, Madras Metropolitan Development Authority. They accordingly issue the following notification, so as to enable the Member Secretary, Madras Metropolitan Development Authority to issue planning permission for the construction in the said plot.
NOTIFICATION In exercise of the powers conferred by Section 113 of the Tamil Nadu Town and Country Planning Act, 1971, (Tamil Nadu Act 35 of 1972) The Governor of Tamil Nadu hereby exempts the building constructed by Thiru P. Thakurdas and Brothers at R.S. No. 479/I part, Plot No. 11-C, Manohar Avenue, Egmore from the provisions of Rules 19(b)I (i), C(i), 19(b)I(i), C(ii), 19(b)I(ii) of Development Control Rules and I.S.I, requirement relating to front set back, side set back on both sides, abutting road width, height of the basement and slope of ramp respectively to the extent of violations as per the plans refused by Member Secretary, Madras Metropolitan Development Authority.
11. The materials referred above clearly go to show that the members of the petitioner-association have locus standi to raise objections as they are interested in objecting the 4th respondent putting up a multistoreyed construction in Plot No. 11-Cand that they are persons affected by the impugned Government Order. Further the petitioner-association made several representations to the first respondent requesting the first respondent to implead the petitioner-association as a party in the appeal and hear their representations. Again on the letter dated 18.2.1985 the concerned officer who received the said letter from the petitioner-association passed an order on 22.2.1985 stating that the petitioner-association also should be heard. Therefore, on the peculiar facts and circumstances of the case, as stated above, I am clearly of the view that the members of the petitioner-association are persons affected and that they are entitled to put forth their objections and also they are entitled to be heard by the first respondent before the first respondent took a decision in the appeal filed by the 4th respondent against the order of the second respondent dated 14.10.1984.
12. A perusal of the impugned Government Order shows that the letters dated 26.9.1985 and 23.10.1985 sent by the petitioner-association are mentioned as item No. 3 out of the six items shown as 'Read' in the preamble portion of the impugned Government Order. However, a careful examination of the impugned Government Order shows that what were considered by the Government before passing the impugned Government Order were only the appeal petition filed by the 4th respondent, the further representations submitted by the 4th respondent and the remarks of the M.M.D.A. The impugned Government Order does not mention that representations of the petitioner-association dated 26.9.1985 and 23.10.1985 were in any manner considered and taken into action by the 1st respondent while passing the impugned order.
13. Mr. A.L. Somayaji, the learned Senior Counsel for the 4th respondent submitted that as against the order of the second respondent dated 14.10.1984, the 4th respondent preferred an appeal before the first respondent under Section 79of the Act and in the said appeal, the4th respondent also requested the Government to relax the rules affecting deviations if any and sanction the plan, and that the first respondent by the impugned Government Order decided to allow the appeal and to exempt the construction made by the4th respondent from the provisions of certain development rules. The learned Counsel further submitted that the first respondent granted exemption in exercise of the power under Section 113 of the Act and in such a case, it is not necessary for the Government to hear any third party, like the petitioner-association because the said section does not contemplate hearing objections from third parties. In support of his contention the learned Counsel relied on the following decisions in Kailasam, N. v. Secretory to Govt. of Tamil Nadu Home (Cinema) (1981) 2 M.L.J. 210 : 94 L.W. 578, Dr. P.G. Viswanathon v. Government of Tamil Nadu, . I am unable to accept the above contention of the learned Counsel for the 4th respondent. On the facts and circumstances pointed out earlier, I have found that the members of the petitioner-association are affected parties in the sense that if the impugned Government Order is given effect to, it will adversely affect the interest of the members of the petitioner-association and therefore, they are entitled to be heard by the first respondent before the first respondent passed any order on the appeal filed by the 4th respondent under Section 79of the Act.
14. In Kailasam, N. v. Secretary to Government of Tamil Nadu, Home (Cinema) (1981) 2 M.L.J. 210 : 94 L.W. 578, relied on by the learned Counsel for the 4th respondent the question whether the appellant in that case was an aggrieved party, though raised, was not considered by the Division Bench. Again that case deal with locating semipermanent cinema theatre and the objections were raised by a competitor in business, which is not the position in the present case. Similarly, in Dr. P.G. Viswanathan v. Government of Tamil Nadu , also the question of 'affected party' or 'aggrieved person' was not raised and considered by the learned Judge who decided the above case. Therefore, the above decisions relied on by the learned Counsel for the 4th respondent can have no application to the facts of the present case.
15. A similar question came up for consideration before Ratnam, J. (as he then was) in K.P. Nataraja Mudaliar v. The State of Tamil Nadu and Ors. W.P. No. 12896 of 1984 dated 23.9.1985. The petitioner in that case was the resident of D. No. 33, Kanakkar Street, Salem. In February 1975, respondents 3 and 4 therein, purchased the property situated opposite to the house of the petitioner. Thereafter, they applied to the Salem Municipality for permission to construct a godown which was granted. In 1983, respondents 3 and 4 started construction of the Godown, but in a manner contravening the building rules. Respondents 3 and 4 attempted to open a new door way into Kanakar Street Lane, which obliged the petitioner to institute on 28.11.1983 a suit in O.S. No. 1641 of 1983 on the file of the District Munsif, Salem. In I.A. No. 2196 of 1983 the petitioner also obtained an interim injunction against respondents 3 and 4 restraining them from putting up any doorway. Subsequently the Municipality issued a notice to respondents 3 and 4 calling upon them to construct the building in conformity with the approved plan. Pursuant to the notice so issued, the Municipality passed an order under Section 205 of the District Municipalities Act directing respondents 3 and 4 demolish the unauthorised construction. In the meantime, respondents 3 and 4 in that case, filed an appeal under Rule 19(1) of the Tamil Nadu District Municipalities Building Rules, which was ultimately dismissed. Thereafter, further appeal was preferred by respondents 3 and 4 before the Government under Rule 19(a), (h) of the Tamil Nadu District Municipalities Building Rules. The petitioner approached the Government on 13.8.1984 and 17.8.1984 with a request that he should be impleaded as a party in the appeal. Since that request of the petitioner was not acceded to by the Government, the petitioner sent an application to implead himself by registered post on 21.8.1984 which was received by the Government on 22.8.1984. Subsequently on 21.11.1984, the Government passed the order challenged in the writ petition granting exemption in favour of respondents 3 and 4, after considering the application for exemption made by respondents 3 and 4 on 27.6.1984. The learned Judge, who heard that writ petition while countenancing the plea of the petitioner in that case, that the refusal of opportunity to the petitioner, to put forth his objection prior to the grant of exemption in favour of respondents 3 and 4 would vitiate the impugned order of the Government granting exemption, held as follows:
...On the facts of this case, it appears to me that the petitioner should have been granted an opportunity to set out and put forth his objections to the grant of exemption prayed for by respondents 3 and 4. Even in the course of the prior proceedings in W.P. No. 1435 of 1984, it has been found that the petitioner has cause for complaint, in the sense, that the offending construction at the instance of respondents 3 and 4 will cause obstruction to the free flow of light and air to the premises of the petitioner. A perusal of the impugned G.O. does not disclose that the representations made by the petitioner were in any manner considered or taken into account. There is no reference to the representation of the petitioner against the grant of exemption. Earlier, it has been seen how the attempt of the petitioner to get himself impleaded as a party to the appeal preferred by respondents 3 and 4 was not conceded. In other words, the petitioner who had a legitimate grievance against the off ending construction put up by respondents 3 and 4 had not been afforded an opportunity for putting forth his objections properly. An injunction had been granted which has the effect of recognizing prima facie the rights of the petitioner in the matter of light and air, as found by this Court earlier. I am unable to accept the argument of the learned Additional Government Pleader that the representation sent in by the petitioner had also been taken note of prior to the passing of the impugned order. All that is seen from the endorsement found on page 48 of the file produced before the Court is that the facts of the case will be considered on receipt of the report from the Director of Town and Country Planning before issuing the final order. Actually they have not been so considered at the time of the passing of the order. As pointed out earlier, the impugned G.O. does not make any reference whatsoever to the representation made by the petitioner. In those Circumstances, it cannot be taken that the petitioner's objections were considered and only thereafter the impugned G.O. granting exemption to respondents 3 and 4 under the Tamil Nadu District Municipalities Building Rules, 1972, was passed. Inasmuch as this Court in W.P. No. 1465 of 1984 had already concluded that the petitioner is personally aggrieved by the causing of obstruction to the free flow of light and air owing to the offending construction being put up by the respondents 3 and 4, in the interests of justice and equity, the petitioner should be given an opportunity to set out his objections to the grant of exemption prior to the passing of the order to that effect. In the light of the circumstances of the case and in view of the prior proceedings in W.P. No. 1465 of 1984 the impugned order granting exemption to respondents 3 and 4 without affording the petitioner an opportunity to put forth his objections thereto cannot be justified.
Consequently, the learned Judge set aside the order of exemption passed by the Government and remanded the matter to the Government with a direction to consider the application for exemption under Rule 19(i)(b) afresh after affording a reasonable opportunity to the petitioner in that case, to put forth his objections in person and also after taking into account the representation made against the grant of exemption by the petitioner.
16. The ratio of the above decision is directly applicable to the facts of the present case. As already pointed out, the specific case of the petitioner-association is that the proposed multistoried construction in Plot No. 1l-C of Manohar Avenue violates the right of the members of the petitioner-association to live in a healthy environment guaranteed under Article 21 of the Constitution of India, that the construction of 20,000 sq.ft. on the plot of 2 grounds in a 20 feet wide blind street and further the construction on the rear portion would make residential area where the members of the petitioner-association are living, unhealthy and noisy affecting the health and happiness of the residents who would be deprived of fresh air and light which would have otherwise been available to them if the constructions as per the building regulations are permitted. In view of the said stand of the members of the petitioner association in all the prior court proceedings to which the 4th respondent is also a party, it has to be held that the members of the petitioner-association are parties affected by the impugned Government Order. Further the petitioner association has made repeated requests to the first respondent to impleaded it as a party in the appeal filed by the 4th respondent and to give an opportunity to it to put forth its objections and also to hear the members of the petitioner-association before passing any order on the appeal filed by the 4th respondent under Section 79 of Act. In these circumstances, lam clearly of the view that G.O.Ms. No. 1 119, Housing and Urban Development, dated 30.7.1987 challenged in W.P. Nos. 10493 of 1987 and 1581 of 1991 granting exemption to the 4th respondent, without affording an opportunity to the members of the petitioner-association to put forth their objections and without hearing them is clearly violative of the principles of natural justice and therefore, the impugned Government Order is liable to be quashed.
17. Accordingly, W.P. No. 10493 of 1987 and W.P. No. 1581 of 1991 are allowed and the impugned G.O.Ms. No. 1 119, Housing and Urban Development, dated 30.7.1987 is quashed and the matter is remitted to the first respondent for fresh disposal. The first respondent is directed to consider the appeal filed by the 4th respondent against the order of the second respondent dated 14.10.1984 and the request of the 4th respondent for exemption under Section 113 of the Act afresh and pass appropriate orders on merits and according to law after affording a reasonable opportunity to the petitioner-association to put forth its objections and hearing the representations of the petitioner-association in person also after taking into consideration the objections of the petitioner-association.
18. As I am setting aside the impugned order on the sole ground that it is violative of the principles of natural justice, it is not necessary to deal with the other contentions raised by the learned Counsel on either side and they are left open.
19. W.P. No. 1191 of 1988, and W.P. No. 1952 of 1991. Admittedly the order challenged in these writ petitions was passed by the second respondent (M.M.D.A) pursuant to the G.O.Ms. No. 1119, Housing and Urban Development, dated 30.7.1987, as a consequential order, W.P. No. 1580 of 1991. Similarly the order challenged in this writ petition was passed by the third respondent (Corporation of Madras) pursuant to the G.O.Ms. No. 1119, Housing and Urban Development, dated 30.7.1987 as a consequential order. Inasmuch as I have quashed G.O.Ms. No. 1119, Housing and Urban Development, dated 30.7.1987and allowed W.P. No. 10493 of 1987 and W.P. No. 1581 of 1991, the consequential orders challenged in, W.P. No. 1191 of 1988, W.P. No. 1582 of 1991 and W.P. 1580 of 1991 are also liable to be quashed. Accordingly I allow W.P. No. 1191 of 1988, W.P. No. 1582 of 1991 and W.P. No. 1580 of 1991 and set aside the order challenged in those writ petitions.
20. W.P. No. 5851 of 1984. In view of the orders passed in W.P. Nos. 10493 of 1987, 1191 of 1988 and in 1580 to 1582 of 1991, no order is necessary in W.P. No. 5851 of 1984. Accordingly W.P. No. 5851 of 1984 is dismissed. There will be no order as to costs.