Madras High Court
Apesh Construction Limited vs The Corporation Of Madurai on 2 November, 2012
Author: R.Sudhakar
Bench: R.Sudhakar
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 02/11/2012 CORAM THE HONOURABLE MR.JUSTICE R.SUDHAKAR W.P.(MD)No.11295 of 2012 W.P.(MD)No. 9362, 9853, 9946, 9947, 9964, 9965, 9966, 10018, 10217, 10303, 10566, 10744, 10794, 11117, 11467, 11574, 11641, 11702, 12069, and 14016 of 2012 and all connected Miscellaneous Petitions W.P(MD)No.11295 of 2012: Apesh Construction Limited, F-60, Malhotra Building, 2nd Floor, Connaught Place, New Delhi - 110 001. ... Petitioner Vs. 1.The Corporation of Madurai, through its Commissioner, Arignar Anna Maligai, Madurai - 625 002. 2.Madurai Local planning Authority, represented by its Member Secretary, Corporation Building Complex, III Floor, Arignar Anna Maligai, Madurai - 625 002. ... Respondents Writ Petition No.11295 of 2012 is filed under Article 226 of the Constitution of India praying for the issuance of a writ of Certiorarified Mandamus to call for the records of Notice dated 30.07.2012 of the second respondent under Section 57(4) of the Town and Country Planning Act, 1971 and quash the same and consequently, direct the second respondent not to interfere with the petitioner's construction in accordance with the Planning Permit No.Ki.Ma.Po1/03635/09 and Building Plan Approval No.EEI/252/09 dated 23.07.2009 of the first respondent. W.P.No.11295 of 2012:- !For Petitioner ... Mr.P.S.Raman, Senior Counsel for Mr.M.Siddharthan ^For Respondents... Mr.K.Chellapandian, Additional Advocate General - III, assisted by Mr.A.K.Baskarapandian, Special Govt.Pleader for R.2 Mr.G.R.Swaminathan for R.1 * * * * * :COMMON ORDER
These batch of writ petitions have been filed challenging the notice issued by the second respondent - Madurai Local Planning Authority, issued under Sections 56, 57, 85 read with Section 49 of the Tamil Nadu Town and Country Planning Act, 1971.
2. The impugned notices in all these cases, are almost the same. By consent all the writ petitions have been taken up together for disposal.
3. The Member Secretary of the Madurai Local Planning Authority has issued the notices stating that the petitioners' buildings under construction or that have been completely constructed are unapproved. The construction has been put up without obtaining the approval as per Section 49 of the Tamil Nadu Town and Country Planning Act, 1971. The petitioners were called upon to remove the buildings and restore the properties to the old position within 30 days of the receipt of the notice, failing which action will be taken under Sections 56 and 57 of the Tamil Nadu Town and Country Planning Act, 1971, by way of sealing and demolishing the buildings. In such circumstances, these batch of writ petitions have been filed.
4. For the purpose of disposal of these writ petitions, the facts in the case of W.P(MD)No.11295 of 2012 are dealt with in extenso and insofar as the petitioners in W.P.(MD)Nos.9362, 9853, 9946, 9964, 9965, 9966, 10018, 10217, 10303, 10566, 10794, 11117, 11641, 11702, 11467, 12069 and 14016 of 2012 are concerned, the tabulated column which are set out hereunder, as furnished by the respective petitioner, would reveal the facts which are almost identical in nature.
5. Apesh Constructions Limited - the petitioner in W.P(MD)No.11295 of 2012, became the owner of the property and they wanted to develop the same as a multi-storeyed residential building. Therefore, they submitted an application to the first respondent - Madurai Municipal Corporation.
6. The brief description of the property as set out in the chart and payment made to the authority for grant of building permission is as follows:
W.P(MD)No.11295 of 2012:
W.P. No. Name of the petitioner Description of property in dispute Date of Application and its No. for approval No. & Date of approval by Corporation Date of approval by L.P.A. Amount paid to Corporation Amount paid to L.P.A. No. of floors sanc-tioned No. of floors cons-tructed Date of impugned order and contents 11295 /2012 Apesh Construc-tion Limited New TS No.3P, 4P, 5P, 6P, 7/1B, 7/2B in Block No.1 and New TS No.15 in block No.30. Both Blocks in Ward No.2 at Door No.2B, Kothanda-raman Mills Road, Mahalipatti, Madurai - 625 001.
Ka.Ma.No.EE1/3635/09 21.07.09 U-order No. EE1/252/09 23.07.09 23.07.09 Rs.29,89,425/-
Rs.1,70,989/-
Stilt + 6 Stilt + 6 30.07.12. Notice for demolition u/s. 56, 57 and 85 of T&CP Act.
W.P(MD)No.9362 of 2012:
W.P. No. Name of the petitioner Description of property in dispute Date of Application and its No. for approval No. & Date of approval by Corporation Date of approval by L.P.A. Amount paid to Corporation Building Details Date of impugned order and contents 9362/12 Dr.Barath Kumar Sr.No.597/2, 597/1C, 5, 7/1D 14.06.2010 NE5/8693/2010 16.07.2010 No.302/10 16.07.2010 Rs.19,500/-
07.07.2010 G+5 06.07.2012 Na.Ka.No.859/12 MATHI3 Unauthorized Building W.P(MD)No.9853 of 2012:
W.P. No. Name of the petitioner Description of property in dispute Date of Application and its No. for approval No. & Date of approval by Corporation Date of approval by L.P.A. Amount paid to Corporation Amount paid to L.P.A. No. of floors sanctioned No. of floors cons-tructed Date of impugned order and contents 9853/12 P.Kayal-vizhi SF.No.1399 & 1400 A.V.Bridge, Alwarpuram, Madurai.
No.NE1/ 03888/09 06.08.2008 No.214/2009 25.04.2009 25.04.09 Rs.17,29,538/-
Rs.2,82,580/-
11 606.07.2012 Notice for demolition u/s 56, 57 and 85 of T&CP Act. W.P(MD)No.9946 of 2012:
W.P.No. Name of the petitioner Description of property in dispute Date of Application and its No. for approval No. & Date of approval by Corporation Date of approval by L.P.A. Amount paid to Corporation Building Details Operational Date of impugned order and contents 9946/12 Daniel Thangaraj Sr.No.135/1 A, 135/6 08.07.2010 NE7/09984/2010 19.07.2010 No.323/10 19.07.10 Rs.18,400/-
G+5 Head Room Fully functioned 04.07.2012 Na.Ka.No.805/12/MATHI3 Unauthorized Building W.P(MD)Nos.10566, 9964, 9965 and 11702 of 2012:
W.P. No. Name of the petitioner Description of property in dispute Date of Application and its No. for approval No. & Date of approval by Corporation Date of appro-val by L.P.A. Amount paid to Corporation Amount paid to L.P.A. No. of floors sanc-tioned No. of floors construc-ted Date of impugned order and contents 10566/12 Pandian Automobile S.No.25/5E, 25/8B, Arappalayam Village, MDU. W.E.5/03811/09 Dt. 22.7.09 WE 3/501/09 Dt.24.7.09 24.7.09 Rs.6,24,150/-
Rs.1,18,535/-
G+5 Under Construc-tion 4.7.12 9964/12 Karuppiah S.No.81/2,3 and 4(P).
NE.5/20947/08 Dt.17.8.08 391/08 Dt.27.8.2008 27.8.08 Rs.1,19,850/-
Rs.21,220/-
G+4 G+4 4.7.12 9965/12 Karuppiah S.No.81/3,4,5 NE.2/04883/06 Dt.23.5.06 224/06 Dt.23.5.06 23.5.06 Rs.51,300/-
Rs.15,190/-
G+4 G+4 4.7.12 11702/12 R.P.Asso-ciates
1) S.No.1555/2C Kennet Hospital Road, MDU WE.6/5959/07 Dt.20.7.07 WE6/428/ 07 Dt. 6.8.07 6.8.07 Rs.1,65,266/-
Rs.29,580/-
G+4 G+4 6.8.12
2) S.No.1555/2C Kennet Hospital Road, MDU WE.6/1175/10 Dt.8.2.10 WE6/107/ 10 Dt.19.2.10 19.2.10 Rs.5,59,780/-
Rs.12,450/-
4-6 4-6 6.8.12 W.P(MD)No.9966 of 2012:
W.P. No. Name of the petitioner Description of property in dispute Date of Application and its No. for approval No. & Date of approval by Corporation Date of approval by L.P.A. Amount paid to Corporation Building Details Date of impugned order and contents 9966/12 Dr.R.Ravindra Kumar Sr.No.81/1P, 81/2P, 81/3
i) 26.05.2008 NE5/04810/2008
ii) 20.06.08 NE5/00213/2009 29.5.2008 No.255/08 29.01.2009 No.33/09 27.05.2008 29.01.2009 Rs.6,300/-
Rs.1,890/-
B+G+3 4+5 04.07.2012 Na.Ka.No.799/12 MATHI3 Unauthorized Building W.P(MD)No.10018 of 2012:
W.P.No. Name of the petitioner Description of property in dispute Date of Application and its No. for approval No. & Date of approval by Corporation Date of approval by L.P.A. Amount paid to Corporation Building Details Date of impugned order and contents 10018/12 M.Muthuraman Sr.No.164/6 & 164/9
05.10.2009 NE4/11853/2009 05.11.2009 No.501/09 05.11.2009 Rs.22,210/-
G+8
--.06.2012 Na.Ka.No.861/12 MATHI2 Unauthorized Building W.P(MD)No.10217 of 2012:
W.P.No. Name of the petitioner Description of property in dispute Date of Application and its No. for approval No. & Date of approval by Corporation Date of approval by L.P.A. Amount paid to Corporation Building Details Date of impugned order and contents 10217/12 P.Raj Kumar R.S.No.81/3, 81/4 20.04.2010 NE5/06361/2010 18.05.2010 No.216/10 18.05.2010 Rs.92,500/-
G+6 16.07.2010 Na.Ka.No.796/12 MATHI3 Unauthorized Build W.P(MD)No.10303 of 2012:
W.P. No. Name of the petitioner Description of property in dispute Date of Application and its No. for approval No. & Date of approval by Corporation Date of approval by L.P.A. Amount paid to Corporation Amount paid to L.P.A. No. of floors sanctioned No. of floors cons-tructed Date of impugned order and contents 10303/12 M/s.Vignesh Promoters Pvt. Ltd.
SF.No.934/1,2,5,8 & 10, Gokalae Road, Chokki-kulam, Madurai.
No.NE5/ 4211/2007 03.05.2007 No.222/2007 23.05.2007 23.05.07 Rs.18,98,526/-
Rs.2,17,600/-
D.D.No. 221445 Base-ment I & II + 4 6 18.08.2012 Notice for demolition U/s.56,57 and 85 of the T & CP Act.
M/s.Vishaal Promotors Pvt. Ltd.
Rep.by its Chairman R.Ilankovan (REVISED PLAN) SF.No.934/1,2,5,8 & 10, Gokalae Road, Chokki-kulam, Madurai.
No.NE4/ 13709/ 2009 (REVISED PLAN) 10.11.2009 No.583/2009 29.12.2009 29.12.09 Rs.8,72,696/-
Rs.65,093/-
D.D.No. 924820 Base-ment I & II + 4 (+5th & 6th) 6 18.08.2012 Notice for demolition U/s.56,57 and 85 of the T & CP Act.
W.P(MD)No.10794 of 2012:
W.P. No. Name of the petitioner Description of property in dispute Date of Application and its No. for approval No. & Date of approval by Corporation Date of approval by L.P.A. Amount paid to Corporation Amount paid to L.P.A. No. of floors sanc-tioned No. of floors cons-tructed Date of impugned order and contents 10794/12 L.Raja-kumari Plot No.43, T.S.No. 83/1B, 83/1C, 86/2,97/1, Sambakulam E.B.Colony, Madurai.
No.NE3/7734/10, 19.05.2010 No.256/10 15.06.2010 15.06.2010 Rs.2,23,194/-
Rs.6,250/-
1+4 1+4 16.07.12 notice for demo-lition U/s.56, 57 and 85 of T&CP Act.
W.P(MD)No.11117 of 2012:
W.P. No. Name of the petitioner Description of property in dispute Date of Application and its No. for approval No. & Date of approval by Corporation Date of approval by L.P.A. Amount paid to Corporation Amount paid to L.P.A. No. of floors sanctioned No. of floors constructed Date of impugned order and contents 11117/2012 Drr.A.Deva-doss, S/o. Sri.Anna-malai No.75/1 Kodikulam, Alakarkoil Main Road, Sarveyar Colony, Madurai, R.S.No.79/2A and 80/1B 19.04.06 19.04.2006 5.12.2007 Rs.4,81,740/-
Rs.30,000/-
G+4 G+4 15.06.2012 and 16.07.2012 W.P(MD)No.11467 of 2012:
W.P. No. Name of the petitioner Description of property in dispute Date of Application and its No. for approval No. & Date of approval by Corporation Date of approval by L.P.A. Amount paid to Corporation Amount paid to L.P.A. No. of floors sanc-tioned No. of floors constructed Date of impugned order and contents 11467/ 12 M/s.Max Properties Private Ltd.
Survey Nos.126/6A and 127/1A1A in Ward No.1, Vilankudi Village, Madurai. 29.06.2010 NE3/9413/10 No.299/10 01.07.2010 06.07.10 Rs.60,85,820/-
Rs.98,440/-
Ground Floor + 9 Ground Floor + 9 08.08.12 Notice for demolition u/s 56, 57 and 85 of Town and Country Planning Act. W.P(MD)No.11641 of 2012:
W.P. No. Name of the petitioner Description of property in dispute Date of Application and its No. for approval No. & Date of approval by Corporation Date of approval by L.P.A. Amount paid to Corporation Amount paid to L.P.A. No. of floors sanc-tioned No. of floors cons-tructed Date of impugned order and contents 11641/12 Sivaperumal, S/o. C.Gurusamy Pillai Ward No.8, L.I.G.Plot No.340, Arignar Anna Nagar NE5/6241/07 No.360/2007 dated 10.08.2007 10.08.07 Rs.35,020/-
Rs.7,935/-
Base-ment+ ground floor + 4 floor Base-ment + ground floor + 4 floor 04.07.2012 Notice for demolition u/s 56, 57 and 85 of T&CP Act. W.P(MD)No.12069 of 2012:
W.P. No. Name of the petitioner Description of property in dispute Date of Application and its No. for approval No. & Date of approval by Corporation Date of approval by L.P.A. Amount paid to Corporation Amount paid to L.P.A. No. of floors sanctioned No. of floors cons-tructed Date of impugned order and contents 12069/12 V.Shanmuga Pandiyan 108/2B,N. 150, Sambakulam Ganesh Nagar, Madurai. NE5/05124/10 24.03.2010 Vu. Order No.162/10 16.04.2010 16.04.10 Rs.10,68,771/-
Rs.95,200/-
Base-ment Ground Floor, 1st Floor, 2nd Floor, Head Room Base-ment Ground Floor, 1st Floor, 2nd Floor, Head Room 16.07.12 notice for demo-lition U/s.56, 57 and 85 of T&CP Act.
W.P(MD)No.14016 of 2012:
W.P. No. Name of the petitioner Description of property in dispute Date of Application and its No. for approval No. & Date of approval by Corporation Date of approval by L.P.A. Amount paid to Corporation Amount paid to L.P.A. No. of floors sanc-tioned No. of floors cons-tructed Date of impugned order and contents 14016/12 A.Dharma-raj, S/o. Arasappan S.F.No.156/1, 2,(O), Kennet Hospital Road, Madurai.
25.03.10 No.WE6/426/ 2010 20.05.2010 20.05.10 Rs.45,800/-
Rs.12,59,000/-
8 806.08.12 Notice for demolition u/s 56, 57 and 85 of T&CP Act.
W.P(MD)No.9947 of 2012:
This Writ Petition is filed praying to issue a Writ of Certiorarified Mandamus or such other writ or direction and to call for the records passed in Notice No.1 in Na.Ka.No.804/12/MaThi2 dated 15.06.2012 issued by the third respondent and quash the same and consequently, to regularize the building approval plan No.345/10 of file Ka.Ma.No.NE7/0364/10 dated 28.07.2010 by the second respondent.
W.P(MD)No.10744 of 2012:
This Writ Petition is filed praying to issue a Writ of Certiorari or any other appropriate writ or order or direction in the nature of writ calling for records relating to the impugned order passed by the third respondent by his proceedings in Na.Ka.No.798/12/Ma.thi 3 dated 16.07.2012 and quash the same as illegal.
W.P(MD)No.11574 of 2012:
This Writ Petition is filed praying to issue a Writ of Certiorari to call for records pertaining to the Impugned Notice issued to the petitioner by the third respondent in Na.Ka.No.1258/12, dated 06.08.2012 and quash the same.
7. The application was submitted in terms of Section 272 of the Madurai City Municipal Corporation Act, 1971 and also in accordance with Section 49 of the Tamil Nadu Town and Country Planning Act, 1971, in Form No.1. The petitioner's counsel submitted a copy of the application which is in booklet form. It has a serial on the application issued at a costs of Rs.500/- (Rupees Five Hundred only) per application. The said application runs 28 pages and several details are required to be submitted thereunder. The said application in the case of the first petitioner was submitted on 21.07.2009 and after detailed consideration of various factors submitted, the first respondent in exercise of power under Section 272 of the Madurai City Municipal Corporation Act, 1971 and as a delegated authority of the Madurai Local Planning Authority (the second respondent), issued the building permission vide order No.EE1/252/09 dated 23.07.2009.
8. While granting such permission, the petitioner was called upon to make payments under various heads. The building permission specifies certain conditions. The Plan annexed to the permission contains the seal dated 23.7.2009 affixed by the Corporation of Madurai and another seal stating that it is issued by the Member Secretary of Madurai Local Planning Authority, Madurai. Based on the statutory payments already made consequent to the approval given, the construction was completed. In almost all cases it is pleaded that construction is over and parties have occupied the buildings.
9. On 18.10.2010, the second respondent - Madurai Local Planning Authority issued a notice to the petitioner stating that the petitioner has not obtained the permission from the Local Planning Authority in terms of Section 49 of the Tamil Nadu Town and Country Planning Act, 1971 and therefore, the petitioner should make an application within 15 days from the date of receipt of the notice, failing which action will be taken in accordance with Sections 56, 57 and 88 of the Tamil Nadu Town and Country Planning Act, 1971. On receipt of this notice, a reply was given on 31.10.2010, stating that the approval was given by the Madurai City Municipal Corporation and the permission required under law, has been taken. By a letter dated 12.11.2010 sent on 16.11.2010, the Member Secretary of the Local Planning Authority, issued another letter to the petitioner stating that they are in receipt of the building permission granted by the Corporation without enclosing the Plan and request the petitioner to submit the Plan. The petitioner submitted the Plan on 10.12.2010 and thereafter, on 19.01.2011, by referring to the approved Plan submitted by the petitioner, the second respondent - Local Planning Authority, opined that on verification of the Plan, the building for which approval has been granted should have been approved by the Local Planning Authority and therefore, the petitioner should make an application to the said authority, namely, the Local Planning Authority.
10. On 01.02.2011, the petitioner gave a reply to the Local Planning Authority reiterating the permission granted by the first respondent - Corporation of Madurai, in approval No.EE1/252/09 dated 23.07.2009. Thereafter, on 18.02.2011, the second respondent issued another letter to the petitioner by referring to various earlier correspondences to state as follows:
"Since the building in question is a multi-storeyed building as per Rule 4 of the Multi-Storeyed and Public Buildings Rules, 1973, the petitioner has to get permission under Rule 4(a) of the Rules."
This is the specific stand taken by the second respondent on 18.02.2011.
11. The petitioner responded to it, on 31.03.2011 reiterating the approved plan given by the Municipal Corporation and also stating that the project falls under non-scheme area and therefore, the department's claim is not justified.
12. As a consequence to the above, the Corporation of Madurai, in response to the letter by the petitioner dated 31.03.2011, clarified the position and the query raised by the petitioner, vide its reply dated 19.04.2011, is as follows:
"The reply to the above queries are as follows:
a) It is stated that the site being Ward No.2, Block No.1 & 30, situated at Door No.2B, Kothandaram Mills Road, Madurai, falls in Non-Town Planning Scheme Area and thus to the said site Revised Building Rules, 1942 and parking Bye Laws are applicable.
b) This office has issued the Planning Permit No.Ki.Ma.Po1/03635/09 and Building Approval Ka.Vi.No.252/09 dated 07.08.2009, in accordance with the R.O.C.No.59/93(1)MP3, dated 30.12.1993, copy of which is attached herewith, Vide the said notification, powers to provide for Planning Permission and consequent Building Approvals were delegated to the office of the Commissioner, Madurai Corporation".
It is thus clear that the Planning Permit No.Ki.Ma.Po1/03635/09 and Building Approval Ka.Vi.No.252/09 dated 07.08.2009, were accorded in accordance with the said delegated powers, by this office.
It may now be noted that post 1.8.2010, the Planning Permission for Multi storey Buildings are not issued by this office as per the DTCP directives."
13. Based on the response from the Corporation of Madurai, the petitioner replied to the Local Planning Authority that the construction is only as per the approved Plan and it is not illegal. However, not accepting the above clarification, the impugned notice dated 22.03.2012 is issued in Na.Ka.No.1873/10/Mathi 3, signed on 26.03.2012. On same lines another notice was issued on 18.10.2010.
14. Thereafter, the final impugned notice was issued on 30.07.2012 and the notice reads as follows:
"Under Section 57(4) of the Tamil Nadu Town and Country Planning Act, 1971, for locking and sealing the premises on the ground that the approval in terms of Section 49 of the Act, has not been obtained from the Local Planning Authority. The building in question is constructed in a controlled industrial zone as per the approved Master Plan and the multi-storeyed residential building has been constructed without obtaining a Planning permission. Therefore, action is taken to lock and seal the premises in terms of Section 57(4) of the Act."
15. From the impugned proceedings, the following issues arise for consideration:
(i) Whether the petitioner and others have made an application under Section 49 of the Tamil Nadu Town and Country Planning Act, 1971 read with Section 272 of the Madurai City Municipal Corporation Act?
(ii) Whether the petitioners have obtained the building permission from the competent Authority?
(iii) Whether the building in question is an illegal construction without proper Planning Permission and consequently noticed for locking and sealing?
(iv) Is the building in question constructed in the Controlled Industrial Zone contrary to the approved Master Plan and contrary to 1973 Building Rules?
(v) Whether the notice is valid in law and whether the authority has the jurisdiction to issue the notice under challenge?
Issue Nos:(i) to (iii):
16. Mr.P.S.Raman, learned Senior Counsel appearing for the petitioner in W.P(MD)No.11295 of 2012 together with Mr.Yashod Vardhan, learned Senior Counsel, Mr.Jayesh B.Dolia, learned Counsel and Mr.T.R.Rajagopalan, learned Senior Counsel, strongly contended that at the time when the application was submitted to the first respondent, the Corporation of Madurai, the first respondent is the competent authority to grant the building permission and they performed the duties of the Corporation as well as the Local Planning Authority both in terms of Section 272 of the Madurai City Municipal Corporation Act, 1971 and by virtue of the power delegated under Section 91-A of the Tamil Nadu Town and Country Planning Act, 1971 and granted the building permission. The first respondent is lawfully entitled to issue the building permission. The building permission is valid as on date.
17. To amplify this position, they referred to the proceedings of the Chairman, Madurai Local Planning Authority/District Collector, Madurai, in Roc.No.59/93(1) MP3 dated 30.12.1993. The entire proceedings is extracted hereunder as the entire issue in this case turns on this letter:
"ORDER:
Powers to issue planning permission have already been delegated to Commissioner, Madurai Corporation for buildings in non detailed development plan areas and residential buildings in detailed development areas in the resolutions 1st and 2nd cited.
The Director of the Town and Country Planning has given guidelines in the reference 3rd cited regarding the power delegation to local bodies with reference to issue of planning permission.
By considering all the views and in supersession of the resolutions already passed and in exercise of the powers conferred under section 91-A(1) of the Town and Country Planning Act, 1971, the Madurai Local Planning Authority delegates its power to the Commissioner, Madurai Corporation to issue planning permission for the following cases as resolved in its resolution No.7 dt.6.12.93.
1. To issue Planning Permission for all the buildings in Madurai Corporation which satisfy all the rules in force.
2. Those cases which are in contravene to the Master Plan zoning regulations, proposals of the Detailed Development Plans, scheme clauses, parking bye-laws, Madurai City Corporation building rules, Multistoreyed and public building rules, layout conditions, etc., in existence should be forwarded to Director of Town and Country Planning, Madras through Local Planning Authority."
18. It is to be further noticed that the Director of Town and Country Planning, issued a circular in Na.Ka.No.9862/10 BA1, dated 14.06.2010, redefining and amending the powers of the local body for grant of building permission. In effect, the second respondent appears to have taken into its fold the right to grant permission for multi-storeyed buildings. As a consequence, the circulars were issued and a clarification letter was issued on 03.08.2010 implementing the circular of the Director of the Town and Country Planning dated 14.06.2010. The nature of the instructions issued is that an application for residential building of 4,000 sq. ft. (i.e.), Ground + 2 Floors and the commercial building with 2,000 sq. ft. (i.e.), Ground + 1 Floor, permission can be sought for before the local body, namely, the first respondent, who can process the application. Insofar as buildings over and above this specification, the application should be made directly to the Local Planning Authority. This in effect appears to be a decision taken to be applied in the prospective.
19. It was further contended that the original building permission granted by the Corporation of Madurai, is a valid building permission and on a lawful delegation by the authority. Therefore, the proceedings taken by the second respondent in terms of Section 56 of the Tamil Nadu Town and Country Planning Act, 1971, is totally without jurisdiction, misconceived and arbitrary.
20. It is not as if the Local Planning Authority is unaware of the building permission granted. At the time of grant of permission, as has been extracted above, the payments are made under different heads and the Local Planning Authority is receiving a substantial amount towards development charges. The payment that is made to the Local Planning Authority is not disputed. Therefore, they are well aware of the application filed for building permission and the second respondent having received the payment towards development charges without demur are estopped from taking the plea as stated in the notice. They prayed for quashing the notice as totally misconceived, and without jurisdiction.
21. Mr.G.R.Swaminathan, learned Counsel appearing for the first respondent, relied upon the proceedings dated 30.12.1993 of the Chairman of the Local Planning Authority-cum-District Collector, Madurai District, to contend that the grant of building permission is valid in law and the exercise of such power is accepted as lawfully done till the clarification was issued.
22. Mr.G.R.Swaminathan, learned Counsel appearing for the first respondent referred to the provisions of Section 91-A of the Tamil Nadu Town and Country Planning Act, 1971, and stated that appropriate Planning authority, subject to such conditions that may be prescribed, authorised by order, any Committee or Officer specified to exercise any of the powers vested in such appropriate Planning authority by this Act and may cancel the said order as well. He referred to the definition of the word 'appropriate planning authority' to means a 'regional planning authority' or a 'local planning authority' or a 'new town development authority', constituted under Section 11 of the Act.
23. In this case, the Local Planning Authority is the District Collector. The District Collector/Local Planning Authority had delegated his function in exercise of his power under Section 91-A of the Act, to the local body namely, the first respondent Corporation on 30.12.1993. In exercise of that delegated power, the building permission has been granted in all these cases. Therefore, there is no error and the exercise of the power is as per the delegation. The building permission granted in all these cases cannot be said to be in excess of the delegation of power. Since the approval has been granted after considering all the relevant factors, the building Plan approval granted cannot be faulted as erroneous, illegal or that the building is an unauthorized construction. The building permission granted has not been cancelled in the manner known to law and therefore, it is valid.
24. On the other hand, Mr.K.Chellapandian, learned Additional Advocate General appearing for the second respondent - Local Planning Authority, does not dispute the delegation of power under Section 91-A of the Tamil Nadu Town and Country Planning Act, 1971. By referring to the proceedings dated 30.12.1993, he contended as follows:
(i) It is the plea of the learned Additional Advocate General that in cases where there is a contravention of Master Plan, Zoning Regulations, Proposals of the Detailed Development Plans, Scheme Clauses, Parking bye-laws, Madurai City Municipal Corporation Building Rules, Multi-storeyed and Public Building Rules, Layout conditions, etc., in existence, should be forwarded to the Director of Town and Country Planning, Madras, through the Local Planning Authority. In this case, the zone in which many of the buildings have been constructed are other than residential zones. In any event, the application received should have been forwarded to the Local Planning Authority and should not have been processed by the first respondent Corporation as they did not have the power to grant building plan approval in respect of all the buildings which are the subject matter of the present batch of cases.
(ii) Rule 4(a) of the Multi-Storeyed and Public Buildings Rules, 1973, clearly prohibits the construction of multi-storeyed building if it is not approved by the competent authority under the Tamil Nadu Town and Country Planning Act, 1971. He referred to the definition of Rule 2, which defines the multi-storeyed building. All the buildings in these cases fall under this category. The building Plan which is the subject matter of lis in all these cases, is not approved by a competent person. The person who affixed the seal and signed in the building Plan, is not authorised in terms of the Tamil Nadu Town and Country Planning Act, 1971, to give approval as he is not the delegated authority. In other words, he tried to justify the letter dated 30.12.1993, to mean that only such of those buildings which do not fall under the second category of the letter dated 30.12.1993, can be considered for grant of building permission by the first respondent Corporation.
(iii) In addition to that, the learned Additional Advocate General referred to the circular dated 24.09.1993 referred to in Sl.No.3 in Roc.No.59/93(1) MP3 dated 30.12.1993, to state that the power given to the first respondent was already only in respect of certain items as per this circular, (i.e.) to say that the permission can be granted by the first respondent Corporation for (a) single family dwellings with ground + first floor extending to a maximum floor area of two hundred square meters, and (b) Commercial buildings with ground and first floor extending to a maximum floor area of one hundred square meters. Certain categories have to be cleared by the Local Planning Authority and such of those buildings that do not fall under Clauses 1 and 2, will be referred to the Director of Town and Country Planning for approval. Therefore, his contention is that the delegation is prescriptive in nature and not general in terms.
(iv) It is the further contention of the learned Additional Advocate General appearing for the second respondent that even assuming that the delegation is there, such power can be exercised by the Commissioner of the Corporation of Madurai and not anybody else. In the present case, it was pointed out that the seal on the reverse of the building Plan does not bear the signature of the Commissioner of the Corporation of Madurai, but it is signed for the Commissioner. The said person has also signed for and on behalf of the Member Secretary of the Local Planning Authority, which he is not entitled to do so. Therefore, it is not a valid permission in the eye of law.
(v) The learned Additional Advocate General referred to the Master Plan Madurai Local Planning Area and contended that the property in question in the case of W.P(MD)No.11295 of 2012, (Apesh Constructions Limited) falls under the Controlled Industrial Zone. Therefore, the first respondent will have no jurisdiction to issue the planning permission. In any event, the building permission granted in favour of the petitioner contains certain conditions which have not been complied with. It is stated that a channel which runs through the property, has been closed and therefore, there is a violation of the conditions imported in the building permission. The first respondent Corporation has initiated action against the Officer for granting the planning permission to the petitioner in W.P(MD)No.11295 of 2012, stating that it is in violation of the zonal area and in contravention of the provisions of the Multi-Storeyed and Public Buildings Rules, 1973. This will prove that the building permission granted is not by the proper authority.
(vi) The learned Additional Advocate General appearing for the second respondent, relied upon the following decisions:
(a) Dipak Kumar Mukherjee v. Kolkatta Municipal Corporation and others in Civil Appeal No.7356 of 2012 decided on 08.10.2012 (S.C.), wherein the Honourable Supreme Court in paragraph 27 held as follows:
"27. Before parting with the case, we consider it necessary to observe that respondent No.7 is guilty not only of violating the sanctioned plan and the relevant provisions of the 1980 Act and the Rules framed thereunder but also of cheating those who purchased portions of unauthorized construction under a bona fide belief that respondent No.7 had constructed the building as per the sanctioned plan. With the demolition of unauthorized construction some of such persons will become shelterless. It is, therefore, necessary that respondent No.7 is directed to compensate them by refunding the cost of the flat, etc., with interest. Respondent No.7 must also pay for raising construction in violation of the sanctioned plan. It must be remembered that while preparing master plans/zonal plans, the Planning Authority takes into consideration the prospectus of future development and accordingly, provides for basic amenities like water and electricity lines, drainage, sewerage, etc. Unauthorized construction of buildings not only destroys the concept of planned development which is beneficial to the public but also places unbearable burden on the basic amenities and facilities provided by the public authorities. At times, construction of such buildings becomes hazardous for the public and creates traffic congestion. Therefore, it is imperative for the concerned public authorities not only to demolish such construction but also impose adequate penalty on the wrongdoer."
(b) Pratibha Co-operative Housing Society Ltd., v. State of Maharashtra and others reported in AIR 1991 SUPREME COURT 1453, wherein the Honourable Supreme Court laid down as hereunder:
"6. It is an admitted position that six floors have been completely demolished and a part of seventh floor has also been demolished. It was pointed out by Mr K.K. Singhvi, learned counsel for the Corporation that the tendency of raising unlawful constructions by the builders in violation of the rules and regulations of the Corporation was rampant in the city of Bombay and the Municipal Corporation with its limited sources was finding it difficult to curb such activities. We are also of the view that the tendency of raising unlawful constructions and unauthorised encroachments is increasing in the entire country and such activities are required to be dealt with by firm hands. Such unlawful constructions are against public interest and hazardous to the safety of occupiers and residents of multistoreyed buildings. The violation of FSI in the present case was not a minor one but was to an extent of more than 24,000 sq. ft. Such unlawful construction was made by the Housing Society in clear and flagrant violation and disregard of FSI and the order for demolition of eight floors had attained finality right up to this Court. The order for demolition of eight floors has been substantially carried out and we find no justification to interfere in the order passed by the High Court as well as in the order passed by the Municipal Commissioner dated November 13, 1990."
(c) The Regional Director, ESI Corporation v. Chemfab Alkalis (Public) Limited, reported in 2004(2) CTC 326, wherein this Court held as follows:
"14. The liability under the said Act is a statutory liability, which cannot be disowned by any person of the E.S.I. Corporation, much less a Manager, who is not at all competent to pass or write such letters. Therefore, the contention of the respondent is not sustainable. Issue No.(iv) is answered in favour of the appellant."
(d) Friends Colony Development Committee v. State of Orissa reported in (2004) 8 SCC 733, wherein it is held as follows:
"22. In all developed and developing countries there is emphasis on planned development of cities which is sought to be achieved by zoning, planning and regulating building construction activity. Such planning, though highly complex, is a matter based on scientific research, study and experience leading to rationalisation of laws by way of legislative enactments and rules and regulations framed thereunder. Zoning and planning do result in hardship to individual property owners as their freedom to use their property in the way they like, is subjected to regulation and control. The private owners are to some extent prevented from making the most profitable use of their property. But for this reason alone the controlling regulations cannot be termed as arbitrary or unreasonable. The private interest stands subordinated to the public good. It can be stated in a way that power to plan development of city and to regulate the building activity therein flows from the police power of the State. The exercise of such governmental power is justified on account of it being reasonably necessary for the public health, safety, morals or general welfare and ecological considerations; though an unnecessary or unreasonable intermeddling with the private ownership of the property may not be justified."
(e) Manohar Joshi v. State of Maharashtra reported in (2012) 3 Supreme Court Cases 619, wherein it is laid down thus:
"The conclusions in a nutshell and the consequent order
222. In the circumstances we conclude and pass the following order:
(i) We hold that the direction given by the Government of Maharashtra for the deletion of reservation on Final Plot No. 110, at Prabhat Road, Pune, and the consequent commencement and occupation certificates issued by Pune Municipal Corporation (PMC) in favour of the developer were in complete subversion of the statutory requirements of the MRTP Act. The development permission was wholly illegal and unjustified.
(ii) The direction of the High Court in the impugned judgment dated 6-3-
1999 to 15-3-1999 in Vijay Krishna [Vijay Krishna Kumbhar v. State of Maharashtra, (2000) 2 Bom CR 293] for demolition of the building concerned was fully legal and justified.
(iii) The contention of the landowner that his right of development for residential purposes on the plot concerned under the erstwhile Town Planning Scheme subsisted in spite of coming into force of the Development Plan reserving the plot for a primary school, is liable to be rejected.
(iv) The acquisition of the plot of land concerned was complete with the declaration under Section 126 of the MRTP Act read with Section 6 of the Land Acquisition Act and the same is valid and legal.
(v) The order passed by the High Court directing the Municipal Corporation to move for the revival of First Appeal (Stamp) No.18615 of 1994 was therefore necessary. The High Court is expected to decide the revived first appeal at the earliest and preferably within four months hereafter in the light of the law and the directions given in this judgment.
(vi) The developer shall inform PMC whether he is giving up the claim over the construction of the ten-storeyed building (named as "Sundew Apartments") apart from the tenants' building in favour of PMC, failing which either the developer or PMC shall take steps for demolition of the disputed building (Sundew Apartments) as per the time-frame laid down in this judgment.
(vii) The former occupants of FP No. 110 will continue to reside in the building constructed for the tenants on the terms stated in the judgment.
(viii) The Corporation will not be required to pay any amount to the developer for the tenants' building constructed by him, nor for the ten-storeyed building in the event he gives up his claim over it in favour of PMC.
(ix) The strictures passed by the High Court against the then Chief Minister of Maharashtra Shri Manohar Joshi and the then Minister of State Shri Ravindra Mane are maintained. The prayer to expunge these remarks is rejected. The remarks against the Municipal Commissioner are however deleted.
(x) The order directing criminal investigation and thereafter further action as warranted in law, is however deleted in view of the judgment of this Court in Common Cause v. Union of India[(1999) 6 SCC 667 : 1999 SCC (Cri) 1196]
(xi) The then Chief Minister and the then Minister of State shall each pay costs of Rs.15,000 to each of the two petitioners in the High Court towards these ten appeals, over and above the costs of Rs.10,000 awarded by the High Court in the writ petitions payable by each of them to the two writ petitioners.
(xii) The State Government and the Planning Authorities under the MRTP Act shall hereafter scrupulously follow the directions and the suggested safeguards with respect to the spaces meant for public amenities."
25. While considering the rival submissions on the factual and legal pleas taken, it will be relevant to refer to various provisions of the Acts and Rules in order to consider the issue.
26. Section 272 of the Madurai City Municipal Corporation Act, 1971, enables the applicant to seek permission for construction of the building and the said provision reads as follows:
"272. Application to construct or re-construct building:-
1.If any person intends to construct or re-construct a building he shall send to the commissioner -
(a) an application in writing for approval of the site together with a site-plan of the land, and
(b) an application in writing for permission to execute the work together with ground plan, elevations and sections of the building and a specification of the work.
2.Every document furnished under sub-section (1) shall contain such particulars and be prepared in such manner as may be required under rules or by-laws."
This provision is invoked by the petitioners/applicants.
27. It is further pointed out by Mr.G.R.Swaminathan, learned Counsel for the first respondent Corporation and by Mr.T.R.Rajagopalan, learned Senior Counsel, that the Rules that apply as stated above in Section 272 is the Madurai City Municipal Corporation Rules or the Building Rules, 1942 and in support of that, they relied upon a copy of the G.O.Ms.No.1015 Rural Development and Local Authority Department, dated 19.05.1973, which reads as follows:
"ORDER:
The Commissioner, Corporation of Madurai is informed that Section 4(3) of the Madurai City Municipal Corporation Act, 1971, (Tamil Nadu, 15 of 1971) provides that all notifications, rules, by-laws, regulations, orders, directions and powers made issued or conferred under the Tamil Nadu District Municipalities Act, 1920 and in force on the date of commencement of the Tamil Nadu Act 15 of 1971 shall, so far as they are not inconsistent with the provisions of the Act, 15 of 1971 continue to be in force in the City of Madurai until they are replaced under the Act 15 of 1971. In as much as the Building Rules, 1972 (G.O.Ms.No.1009, RDLA, d. 19-5-72), which were issued in supersession of the Building Rules, 1942, were not in force on the date of the commencement of the Madurai City Municipal Corporation Act, (that is on 1-5-71), they will not apply to the Corporation of Madurai. The Building Rules, 1942, though since have been superseded by the Building Rules, 1972, will apply to the Municipal Corporation of Madurai by virtue of Section 4(3) of the Madurai City Municipal Corporation Act, 1971 (Tamil Nadu Act 15 of 1971) till Building Rules are made under section 268 of the Act 15 of 1971."
Hence, the old rules alone will apply.
28. Section 49 of the Tamil Nadu Town and Country Planning Act, 1971, enables a person to make an application for permission to develop any land or building on and after the date of publication of the resolution under sub- section 2 of Section 19 of the Act, for permission to develop the land and the building.
29. Section 49 of the Tamil Nadu Town and Country Planning Act, 1971, reads as follows:
"49. Application for permission.- (1) Except as otherwise provided by rules made in this behalf, any person not being any State Government or the Central Government or any local authority intending to carry out any development on any land or building on or after the date of the publication of the resolution under sub-section (2) of section 19 or the notice in the Tamil Nadu Government Gazette under section 26 shall make an application in writing to the appropriate planning authority for permission in such form and containing such particulars and accompanied by such documents as may be prescribed.
(2) The appropriate planning authority, shall, in deciding whether to grant or refuse such permission, have regard to the following matters, namely:-
(a) the purpose for which the permission is required;
(b) the suitability of the place for such purpose;
(c) the future development and maintenance of the planning area.
(3) When the appropriate planning authority refuses to grant a permission to any person, it shall record in writing the reasons for such refusal and furnish to that person on demand a brief statement of the same."
30. It is not in dispute that the development Plan has been published by the competent authority in respect of the Madurai City also. Therefore, in accordance with the said provision the application is filed in all these cases, in a common application form both under Section 272 of the Madurai City Municipal Corporation Act, 1971 and under Section 49 of the Tamil Nadu Town and Country Planning Act, 1971. A proper and unfilled copy of the application was shown to this court for verification and the above statement is found to be correct.
31. Section 91-A of the Tamil Nadu Town and Country Planning Act, 1971, deals with the power of delegation by the appropriate planning authority to such other Officer or Committee. Section 91-A of the Act, reads as follows:
"91-A. Delegation of powers by appropriate planning authority.- (1) The appropriate planning authority may, subject to such conditions as may be prescribed authorise by order any committee or officer specified in such other to exercise any of the powers vested in such appropriate planning authority by this Act and may cancel such order.
(2) The exercise of any power delegated under sub-section (1) shall be subject to such restrictions and conditions as may be specified in the order and also to control and revision by the appropriate planning authority."
32. The definition of 'appropriate planning authority' is defined under Section 2(3) of the Tamil Nadu Town and Country Planning Act, 1971, as under:
"Section 2 (3). "appropriate planning authority" or "planning authority"
means a "regional planning authority", a "local planning authority" or a "new town development authority", constituted under section 11."
These are all the provisions that are relied upon by the corporation to justify the grant of building permission. Hence, the plea that what has been granted is validly done.
33. Insofar as the issue raised in the present writ petitions, it relates to the scope of power to require the removal of unauthorized development/construction.
34. The primary reason under which the second respondent has initiated action is clause (a) of sub section (1) of Section 56 of the Tamil Nadu Town and Country Planning Act, 1971 and it reads as under:
"56. Power to require removal of unauthorized development:- (1) Where any development of land or building has been carried out-
(a) without permission required under this Act;"
35. Section 57(4) of the Act, which empowers the authority to stop unauthorized development, has been invoked by the authority for locking and sealing the premises on the ground that it is an unauthorized construction. Section 57(4) of the Act, reads thus:
"Section 57(4). Where the development as described in clauses (a) to (d) of sub-section (1) of section 56 is being carried out, the planning authority may also take action to discontinue, till the production of the planning permission from the appropriate planning authority as required under this Act."
There can be no manner of doubt that the application was made under Section 49 of the Tamil Nadu Town and Country Planning Act, 1971 read with Section 272 of Madurai City Municipal Corporation Act, 1971. The planning permission was granted in exercise of that power.
Legal Issue:
36. The primary legal issue that requires to be considered by this Court, is whether the first respondent was within its jurisdiction to issue the building permission in all these cases, in exercise of the so-called power under Section 91-A of the Tamil Nadu Town and Country Planning Act, 1971.
37. To understand the scope of the said power, a cursory look on Section 91-A of the Act, read with the definition of 'appropriate planning authority' as defined under Section 2(3) of the Act, would reveal that the local appropriate planning authority, as defined under Section 91-A of the Act, has a power to authorise a Committee or an Officer specified to exercise any power vested in the appropriate planning authority by the Act. The definition of 'appropriate planning authority' includes the local planning authority and therefore, there can be no manner of doubt in accepting the plea that the Chairman, Madurai Local Planning Authority/District Collector, Madurai, is the competent authority to delegate his power by exercise of power conferred under Section 91-A(1) of the Tamil Nadu Town and Country Planning Act, 1971, on the Commissioner, Corporation of Madurai, to perform the duties as the Local Planning Authority. This has been done and hence the Commissioner, Corporation of Madurai is the appropriate Planning Authority at the relevant time.
38. The next question that arises for consideration, is that while delegating such power, what is the nature of the delegation that has been granted and the conditions that have been imposed. In the present cases, the order in Roc.No.59/93(1) MP3, dated 30.12.1993, clearly states that the power to issue planning permission, has already been delegated to the Commissioner, Corporation of Madurai, for the buildings in non detailed development plan areas and the residential buildings in detailed development areas as per the resolutions dated 22.08.1990 and 13.01.1992. He also refers to the circular No.41474/93/T1, dated 24.09.1993, for the purpose of guidelines and after considering the earlier resolution, circular and after taking note of all the views namely that of the earlier resolution and the circular and in supersession of the resolution already passed and by exercise of the power conferred under Section 91-A(1) of the Act, delegated his power as Local Planning Authority to the Commissioner, Corporation of Madurai, to issue the planning permission to the cases mentioned in resolution No.73 dated 06.12.1993 and that is also extracted in the said letter, (i.e.) to say that (i) the planning permission can be given to all the buildings in Madurai Corporation which satisfy all the rules in force and (ii) in cases where there is contravention to the Master Plan zoning regulations, proposals of the Detailed Development Plans, scheme clauses, parking bye-laws, Madurai City Corporation building rules, Multistoreyed and public building rules, layout conditions, etc., in existence should be forwarded to Director of Town and Country Planning, Madras through Local Planning Authority.
39. This order of the Local Planning Authority gives a right to the Commissioner, Corporation of Madurai, to issue planning permission for all buildings in Corporation of Madurai, which satisfy the rules in force. It is only in a case of contravention of any rules that are in force, the question of referring the matter to the Director of Town and Country Planning Authority, Madras, through the Local Planning Authority, will arise.
40. The order dated 30.12.1993, did not withhold any power with the Local Planning Authority. The terms of delegation of power were absolute only with a rider that in the case of contravention, it should be forwarded to the Director of Town and Country Planning through the Local Planning Authority. It would also mean that the Local Planning Authority in exercise of power under Section 91-A of the Act, had delegated his power absolutely to the Corporation of Madurai, so long as the building permission sought for, is in accordance with the rules. Whether it is single-storeyed or multi-storeyed, if the rules are followed, there is no restriction on the first respondent Corporation to entertain an application for grant of building permission. In case of contravention, the issue was clarified as above. It, therefore, follows that in each and every case, the second respondent has to make out a case of violation or contravention in respect of issues stated in paragraph 2 of the delegation order dated 30.12.1993. This apparently has not been done.
41. On this plea, it is to be noticed that in exercise of power on delegation, the building permission has been granted and the first respondent corporation after receiving all necessary charges, has forwarded to the Local Planning Authority, the development fee as applicable in each one of the cases and they have received the amount without demur. Therefore, the building permission granted in each case cannot be faulted as such, unless it is shown that there is a gross violation or contravention of the rules. Unmindful of the payments made for the development charges, the Local Planning Authority is, now, taking a stand that the buildings are in contravention of the Tamil Nadu Town and Country Planning Act, stating that no permission as required under the Act, has been granted. This plea of the second respondent is far-fetched and totally untenable in law. Since the building permission has been granted in accordance with the power on delegation, it has to be accepted that the application has been made in terms of Section 272 of the Madurai City Municipal Corporation Act, 1971 and Section 49 of the Tamil Nadu Town and Country Planning Act, 1971. Consequently, when the building permission has been granted, on the face of it, it has to be accepted that a valid permission has been sought for and granted.
42. Since this Court has come to the conclusion that the building permission has been granted by a competent authority authorized by law, the notice issued under Section 56 of the Tamil Nadu Town and Country Planning Act, 1971, on the premise that no building permission as required under the Act, has been issued, is therefore, not tenable and consequently, the action of locking and sealing the premises is not justified. Besides, it will be an arbitrary act, contrary to law.
43. Accordingly, Issue Nos.(i) to (iii) are answered in favour of the petitioners.
Issue No.(iv)
44. The next question which arises for consideration, is whether the building in question constructed in the Controlled Industrial Zone is contrary to the approved Master Plan and contrary to 1973 Building Rules?
45. It has to be pointed out that the question of violation of the Multi- Storeyed and Public Buildings Rules, 1973, are issues which are basically factual in nature and the second respondent should have taken action under law either to issue notice to the petitioners to state as to how the conditions of zone have been violated for grant of planning permission or that there is a violation of Multi-Storeyed and Public Buildings Rules, 1973. Having failed to take action on those lines, the second respondent will not be permitted to take the said plea as a counter-blast and in support of a notice which is blissfully vague and bereft of details of those violations. The second respondent cannot improve their case in a counter affidavit, unless they established that they have taken appropriate action as per law for the so-called violation.
46. Insofar as the zone violation is concerned, it is a matter of controversy between the petitioners and the second respondent in all cases and they disputed the contention raised by the second respondent on facts. Therefore, it is not possible for this Court to enter into such controversy at this point of time and come to the conclusion that the petitioners had violated the zones, unless appropriate proceedings are initiated supported by the relevant documents and adjudicated in the manner known to law. In any event, the respondents cannot raise such a plea of contravention in the light of the building permission granted by the competent authority in exercise of the delegated powers under Section 91-A(1) of the Tamil Nadu Town and Country Planning Act, 1971.
47. The plea of the learned Additional Advocate General that the Multi- Storeyed and Public Buildings Rules, 1973, is applicable and therefore, the approval of the Town and Country Planning Authority, is a pre-requisite for the building permission is concerned, is rightly repelled by Mr.G.R.Swaminathan, learned Counsel appearing for the first respondent Corporation, referring to G.O.Ms.No.1015 Rural Development and Local Authority Department, dated 19.05.1973, which clarifies and states that the Revised Building Rules, 1942 alone will be applicable insofar as Madurai City Municipal Corporation is concerned. If the Government itself has clarified so, then, it is for the second respondent to justify their stand, in a proper proceeding even assuming for a moment that the Multi-Storeyed and Public Buildings Rules, 1973, will apply. It is the contention of Mr.G.R.Swaminathan, learned Counsel appearing for the first respondent Corporation that the Rules will apply in respect of the buildings that fall within the purview of Tamil Nadu District Municipalities Act, 1920 and not in respect of Madurai Municipal Corporation Act. In support of this plea, he refers to Section 4(1) of the Madurai City Municipal Corporation Act, 1971, which reads as follows:
"4. Bar of Application of Tamil Nadu Act V of 1920:
(1) Subject to the provisions of sub-section (2) and (3), the Tamil Nadu District Municipalities Act, 1920 (Tamil Nadu Act V of 1920) shall, with effect from the date of commencement of this Act, cease to apply to the City."
This provision clarifies the above plea of the corporation that building permission has been given under proper authority of law and therefore, there is no illegality or irregularity.
48. Therefore, the issue that is relied upon by the Additional Advocate General has to be adjudicated upon as and when raised. As to how it can be made applicable in the case of buildings which fall within the jurisdiction of Madurai City Municipal Corporation has to be justified in an appropriate proceedings as per law. Therefore, in the absence of specific legal provision, the second respondent has to state as to how it can justify a notice under Sections 56 and 57(4) of the Act, for locking and sealing the premises. The impugned notices in all these cases, are without jurisdiction, arbitrary and capricious and therefore, liable to be interfered with by this Court. Therefore, the issue No.(iv) is answered in favour of the petitioners as above.
49. The controversy in these cases revolves around the building permission granted by the first respondent. It is to be understood that the act of the Executive Authority in exercise of the power lawfully vested with him, is deemed to be done in accordance with law and that permission granted is valid till it is set at naught in the manner prescribed by law and not otherwise.
50. In the present case, the building permission granted to each one of the petitioners, is granted by the first respondent Corporation in exercise of the power consequent to delegation in terms of Section 91-A(1) of the Tamil Nadu Town and Country Planning Act, 1971 and therefore, it is deemed to be a valid exercise of a power and the permission granted is also beyond the pale of controversy. Unless the permission already granted is set aside in the manner known to law, the second respondent will have no jurisdiction to issue notice under Sections 56 and 57(4) of the Act.
51. The Honourable Supreme Court in the decisions in (i) M/s.East India Commercial Co. Ltd., v. Collector of Customs reported in AIR 1962 Supreme Court 1893 and (ii) Union of India - vs. - Sampat Raj Dugar reported in 1992(58) E.L.T. 163(S.C.), has clearly amplified the legal position that the licence granted is valid until it is cancelled.
52. M/s.East India Commercial Co. Ltd., v. Collector of Customs reported in AIR 1962 Supreme Court 1893 relates to import of goods subject to certain conditions and the revenue took the stand that they were in contravention of the Sea Customs Act, 1878 read with Import and Export (Control) Act, 1947 for breach of the condition of licence. In that case, the Supreme Court had an occasion to consider the scope of the licence issued and on its effect till it is cancelled in the manner known to law. Para 35 of the decision reads as follows:-
"(35) Nor is there any legal basis for the contention that licence obtained by misrepresentation makes the licence non est, with the result that the goods should be deemed to have been imported without licence in contravention of the order issued under S.3 of the Act so as to bring the case within cl.(8) of S.167 of the Sea Customs Act. Assuming that the principles of law of contract apply to the issue of a licence under the Act, a licence obtained by fraud is only voidable: it is good till avoided in the manner prescribed by law. On May 1, 1948, the Central Government issued an order in exercise of the power conferred on it by S.3 of the Act to provide for licences obtained by misrepresentation, among others, and it reads:
"The authorities mentioned in the Schedule hereto annexed may under one or other of the following circumstances cancel licences issued by any officer authorised to do so under clauses (viii) to (xiv) of the notification of the Government of India in the late Department of Commerce, No.23-ITC/43, dated 1st July 1943, or take such action as is considered necessary to ensure that the same is made ineffective, namely:-
(i) when it is found subsequent to the issue of a licence that the same has been issued inadvertently, irregularly or contrary to rules, fraudulently or through misleading statement on the part of the importer concerned; or
(iii) when it is found that the licensee has not complied with any one or more of the conditions subject to which the licence may have been issued.
SCHEDULE Clauses Licensing Authority Cancelling Authority Clause (xiii) Any officer authorised by the Central Government Chief Controller of Imports and/or Government of India.
This order, therefore, authorised the Government of India or the Chief Controller of Imports to cancel such licences and make them ineffective. The specified authority has not cancelled the licence issued in this case on the ground that the condition has been infringed. We need not consider the question whether the Chief Controller of Imports or the Government of India, as the case may be, can cancel a licence after the term of the licence has expired, for no such cancellation has been in this case. In the circumstances, we must hold that when the goods were imported, they were imported, under a valid licence and therefore it is not possible to say that the goods imported were those prohibited or restricted by or under Ch.IV of the Act within the meaning of cl.(8) of S.167 of the Sea Customs Act."
53. Similar view was taken by the Supreme Court in Union of India - v.
- Sampat Raj Dugar reported in 1992(58) E.L.T. 163 (S.C.) relying upon the decision in M/s.East India Commercial Co. Ltd., v. Collector of Customs reported in AIR 1962 Supreme Court 1893 referred to above. The relevant portion of the decision is set out hereunder:-
"21.The next question is whether the import of the said goods was contrary to law in any manner and whether the said goods are liable to be confiscated under the Customs Act. The only provisions relied upon by the appellants are Clauses (d) and (o) in Section 111 of the Customs Act which we have set out hereinabove. In our opinion none of these clauses are attracted in the present case. Clause (d) contemplates an import which is contrary to any prohibition imposed either by the Customs Act or any other law for the time being in force. No such prohibition can be pleaded in this case since on the date of the import the said goods were covered by a valid import licence. The subsequent cancellation of licence is of no relevance nor does it retrospectively render the import illegal. (East India Commercial Co. Ltd. v. The Collector of Customs, Calcutta-1963(3) S.C.R. 338 at 372)"
The legal principle enunciated in the above decision will apply to the facts of the present case.
54. In the present case, the permission has been granted by the competent authority and is valid as on date and has not been cancelled in the manner known to law. Hence, the notice impugned is bad in law and also without jurisdiction. Issue No.(v) is also answered in favour of the petitioners.
55. Insofar as the decisions relied on by the learned Additional Advocate General are concerned, in Manohar Joshi v. State of Maharashtra reported in (2012) 3 Supreme Court Cases 619, the controversy revolves around the State Government's endeavour to change the classification of the land for the purpose of different user. In other words, the land that was ear-marked for Primary Education was exempted for residential purpose and therefore, the Honourable Supreme Court frowned upon the Government for such action. The controversy in the present case is not a case of change of zonal classification or modification of user of the land, etc. No action has been taken on those lines before issuing the locking and sealing notices. The building permission remains valid and has not been cancelled in the manner prescribed by law.
56. In Dipak Kumar Mukherjee v. Kolkatta Municipal Corporation and others in Civil Appeal No.7356 of 2012 decided on 08.10.2012 (S.C.), it is a case of violation of sanctioned Plan. If the building or buildings in the present cases are built in terms of the Plan, then there is no question of violation of the said Plan and the said decision will not apply to the present case unless proved otherwise.
57. The decision in The Regional Director, ESI Corporation v. Chemfab Alkalis (Public) Limited, reported in 2004(2) CTC 326, is relied upon by the learned Additional Advocate General to state that incompetent person has signed and put the seal and signed on the building permission.
58. This contention is repelled by counsel for corporation referring to the files to state that the Commissioner, Corporation of Madurai, has, in fact, signed the building permission order and in execution of that order alone, the seal and signature have been endorsed as having been signed by the Corporation. Therefore, prima facie, it cannot be said that a person not duly authorised has signed the building Plan. In any event, assuming that the second respondent's contention has some relevance on facts that can be resolved only in a full- fledged enquiry. Without going through the material facts, the second respondent cannot assume or presume that it was not signed by the competent authority merely on the basis of an endorsement which has not proved to be erroneous or unauthorized by cogent material. It is in the realm of conjecture or surmise. There is no application of mind before making such allegation. No notice has been issued to that effect. Hence, at this point of time, it has to be held that the building permission has been granted by the Commissioner, Corporation of Madurai only and prima facie, it has to be accepted as valid document unless proved otherwise, in any event, not in reply to the writ petition seeking to quash the inappropriate notice.
59. In this case, there is no material for the present to prove that it is not signed by the competent authority. The second respondent is entitled to look into each case and find out whether the contention raised by the first respondent that the Commissioner, Corporation of Madurai, alone has passed that order, is justified or not and thereafter, proceeded in accordance with law, if they so desire.
60. It is trite law that if fraud or misrepresentation has taken place, the authority is always entitled to correct the same by following the procedure prescribed by law.
61. The learned Additional Advocate General thereafter submitted that assuming that the Plan is valid, there are certain contraventions in the construction made by the individuals and that should be allowed to be corrected. This Court is very clear and categorical in stating that if there is any violation of the building permission, the authority is at liberty to set right the same in the manner and procedure prescribed by law and not otherwise. No action of the authority should be arbitrary and whimsical.
62. One other issue raised by the learned Additional Advocate General is on the charge memo issued on one of the Officers stating that he has passed some orders in violation of law. It is to be noticed that as per the corporation the building permissions in all these cases, are issued by the Commissioner, Corporation of Madurai and that building permission has not been cancelled in the manner known to law. If any action is proposed against one or other Officers, until that issue is concluded, either way it cannot be presumed that the charge is a good ground to cancel the building permission. Such a plea is preposterous. Therefore, this court is not inclined to accept the initiation of any proceedings against one or other Officers as a reason to initiate proceedings under Sections 56 and 57 of the Tamil Nadu Town and Country Planning Act, 1971. That will amount to improper application of law.
63. For all the above said reasons, the impugned proceedings in all the writ petitions, are quashed.
64. In the result, all the writ petitions are allowed as above. Consequently, the connected Miscellaneous Petitions are closed. No costs.
rsb/ts To
1.The Corporation of Madurai, through its Commissioner, Arignar Anna Maligai, Madurai - 625 002.
2.The Member Secretary, Madurai Local planning Authority, Corporation Building Complex, III Floor, Arignar Anna Maligai, Madurai - 625 002.